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Digitized  by  tine  Internet  Archive 

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http://www.archive.org/details/digestcontestedeOOunitiala 


THE 


MISCELLANEOUS  DOCUMENTS 


OF   THB 


HOUSE  OF  REPRESENTATIVES 


FOR  7HE 


SECOi^D  SESSION  OF  THE  FIFTY-FIRST  CONGRESS. 


1890-'91. 


WITH    INDEX. 


IN    SIXTEEN    VOLUMES. 


•  .-.^    g  ir»>i»'.»;iin        1        ^  ,',•.,.    . 


WASHINGTON: 

GOVERNMENT  PRINTING  OFFICE. 
1891. 


INDEX  TO  HOUSE  MISCELLANEOUS  DOCUMENTS. 


CONTENTS  OF  THE  VOLUMES. 


Vol.  I. 

.No8. 1  to  127,  inclusive,  except  Noa.  12, 13, 

Vol.    9. 

.No.  128. 

14,76,77,78,108. 

Vol.  10. 

-No.  129,  pt.  1. 

Vol.  2. 

-No.  12. 

Vol.  11. 

.No.  129,  pt.  2. 

Vol.  3. 

-No.  13. 

Vol.  12. 

.No.  130. 

Vol.4. 

No.  14. 

Vol.  13. 

.No.  131. 

Vol.  5. 

-No.  76. 

Vol.  14. 

-No.  182. 

Vol.  6. 

.No.  77. 

Vol.  15. 

.No.  136. 

Vol.  7. 

-No.  7a 

Vol.  16. 

.No.  137. 

Vol.  8. 

-No.  108.133,134,135 

Subjects. 


A. 

Alexander,  John  W.,  administrator,  report  of  Conrt  of  Claimson  case  of. 

Anacostia  and  Potomac  River  Bailroad,  annual  report  of 

Army,  rietired  officers,  resolution  relative  to  in  the  civil  service 

Astronomical  observations  for  1886 

Ay  res,  Asa  B.,  et  al.,  resolution  to  refer  claims  to  Court  of  Claims 

B. 

Bailey,  John  C,  administrator, report  of  Court  of  Claims  on  case  of... 
Baruett,  J.  C,  administrator, report  of  Court  of  Claims  on  case  of...... 

Barnett,  Julia,  resolution  to  refer  claim  to  Court  of  Claims 

Beachley,Ezra  and  Jonas,  executors,  report  of  Court  of  Claims  on  case 

of 

Boarman,  Aleck,  resolution  to  impeach  , 

Brashear,  Martha,  administratrix,  report  of  Court  of  Claims  on  case  of. 

Brown,  F.  W.,  administrator,  rep6rt  of  Court  of  Claims  on  case  of 

Bruen,  Capt.  John  T.,  resolution  to  refer  claim  to  Conrt  of  Claims 

C. 

Calhoon,  Clement,  report  of  Court  of  Claims  on  case  of 

Canter,  Isaac  W..  administrator,  report  of  Court  of  Claims  on  case  of  .. 

Capitol,  North  O  street  and  South  Washington  Railroad  Company,  an- 
nual report  of 

Caruth,  Thomas,  report  of  Court  of  Claims  on  case  of 

Chapin,  Virginius  P.,  report  of  Court  of  Claimson  case  of 

Chapman,  William  H.,  report  of  Court  of  Claims  on  case  of 

Christian  Church,  of  Marshall,  Mo.,  resolution  to  refer  claim  to  Court  of 
Claims 

Claims,  report  of  Treasury  Department  in  relation  to  certain  specified 
in  House  Ex.  Doc.  No.  314,  Fifty-first  Congress,  first  session 

Clark,  Samuel  I.,  assignee,  report  of  Court  of  Claims  on  case  of.... .... 

Clem,  Anderson  A.,  report  of  Court  of  Claims  on  case  of 

Clerk  of  the  House  of  Representatives : 

Annual  report  of  the  clerks  and  employes  in  the  House 

Report  on  inventory  of  public  property  in  possession  of.... 

Commissioner  of  Fish  and  Fisheries,  expenditures  by  the 

Congressional  Library,  report  on  construction  of  building  for  the 

Conrad,  Ebenezer  J.  et  al.,  report  of  Court  of  Claims  on  case  of 

Conrad,  John  D.,  report  of  Court  of  Claims  on  case  of 

248080 


No. 


VoL 


121 

1 

84 

1 

92 

1 

182 

14 

120 

1 

118 

1 

71 

1 

90 

1 

51 

1 

117 

1 

97 

1 

16 

1 

98 

1 

21 

1 

62 

1 

95 

1 

60 

1 

81 

1 

42 

1 

126 

1 

22 

1 

65 

1 

67 

1 

6 

1 

10 

1 

5 

1 

4 

1 

17 

1 

28 

1 

III 

IV 


INDEX    TO    HOUSE    MISCELLANEOUS   DOCUMENTS. 


Subject. 


Constitation  of  the  United  States,  relating  to  violation  of  the  four- 
teenth amendment  to  the ...... 

CoDsnlar  reports 

Contested-election  cases,  digest  of 

Contested-election  cases,  print  digest  of,  in  the  Fifty -first  Congress  ... 
Court  of  Claims : 

Report  of  the,  on  judgments  of  the 

Report  of  dismissed  cases  by  the 

Creek  Indians,  protest  of  delegates  of  the,  in  relation  to  jurisdiction  of 

Federal  courts  in  Indian  Territory 

Crockett,  John  T.,  report  of  Court  of  Claims  on  case  of 

D. 

Daub,  Ezra,  report  of  Court  of  Claims  on  case  of 

Deck,  George,  report  of  Court  of  Claims  on  case  of 

De  Loach,  Claiborne,  estate  of,  resolution  to  refer  claim  to  Court  of 

Claims 

Department  of  Labor,  expenditures  in  the 

District  of  Columbia,  Zoological  Park  Commission,  final  report  of 

Donato,  Belate  A.  et  ah,  resolution  to  refer  claims  to  Court  of  Claims.. 
Doorkeeper,  House  of  Representatives : 

Report  of  property  in  possession  of 

Report  of  sale  of  waste  paper 

£. 

Eckington  and  Soldiers'  Home  Railway  Company,  annual  report  of 

Elkins,  William  A.,  report  of  Court  of  Claims  on  case  of 

Ely,  Robert  M.  et  al.,  resolution  to  refer  claims  to  Court  of  Claims 

Embry.  W.  J.,  executor,  report  of  Court  of  Claims  on  case  of 

F. 

Fairex,   Mathilde  M.,   administratrix,  report  of  Court  of  Claims  on 
case  of 

Fish  Bulletin,  report  for  1889 

Fish  and  Fisheries,  report  of  the  Commissioner  of,  on  expenditures 

Fish  hatchery,  resolution  relative  to,  in  northern  New  York 

Fisher,  Isaac,  et  al.,  resolution  to  refer  claims  of  to  Court  of  Claims 

Fisher,  John,  et  al.,  resolution  to  refer  claims  to  Court  of  Claims 

Flagg,  Robert  S.  and  Thomas  G.,  executors,  report  of  Court  of  Claims 

on  case  of 

Flower,  Mary  J.,  report  of  Court  of  Claims  on  case  of 

Fort  Brown  military  reservation,  relation  to  rent  of 

Freedmans'  Savings  and  Trust  Company,  annual  report  of  the  commis- 
sioner for  I89U 


G. 

Galloway,  Thomas  S.,  administrator,  report  of  Court  of  Claims  on  case 
of 

Gay,  Hon.  Edward  J.,  deceased,  eulogies  upon.... 

Geological  Survey,  bulletons  62  to  65 

Georgetown  Barge,  Dock,  Elevator  and  Railway  Company,  report  of 

names  of  stockholders  and  condition  of 

Georgetown  and  Tennallytown  Railway  Company,  annual  report  of.. 
GiUilan,  Ruth  S.,  administratrix,  report  of  Court  of  Claims  on  case  of.. 
Gray,  George  L.,  report  of  Court  of  Claima  on  case  of 

H. 

Eeberlein,  August,  estate  o^  resolution  to  refer  claim  to  Court  of 

Claims  

Hightower,  Thomas,  report  of  Court  of  Claims  on  case  of 

Horse  Diseases,  r«port  relating  to 


24 

54 

101 

9 

93 

115 

7 
8 


85 

48 

106 

64 


35 

131 

5 

46 
110 
113 

61 

59 

100 

26 


37 

108 
136 

87 

•86 

63 

79 


107 

66 

130 


INDEX    TO    HOUSE    MISCELLANEOUS   DOCUMENTS. 


House  of  Eepresentatives : 

Clerk  of  (Hon.  Edward  MoPherson),  annual  report  of  clerks   and 

employ^  of  the 

report  on  public  property  in  pos- 
session of 

Committees, list  of  standing  and  select 

Doorkeeper,  report  of  property, 

report  of  sale  of  waste  paper 

Galleries  of  the,  removal  of  partition  and,  on  the  south  side  of 

Members,  list  of 

alphabetical  list  of 

Special  messengers,  resolution  to  pay 

Howery ,  Lewis,  report  of  Court  of  Claims  on  case  of 

I. 

Indian  Territory,  protest  of  Creek  delegates  against  bill  extending 
jurisdiction  of  Federal'courts  in .. .... 


J. 


Jews  in  Bussia,  relative  to  , 


K. 

Keedy,  C.  M.,  George  W.,  and  Samuel  J.,  executors,  report  of  Court  of 
Claims  on  case  of 

L. 

Library  of  Congress,  report  on  construction  of  building  for 

Lilly,  Elijah,  report  of  Court  of  Claims  on  case  of  . 

M. 

Manson,  William  T.,  report  of  Court  of  Claims  on  case  of 

Martin,  Edmund  H.,  heirs  of,  report  of  Court  of  Claims  on  case  of 

Meaher  &  Meaher,  resolution  to  refer  claim  to  Court  of  Claims 

Merrifield,  Samuel  B.,  report  of  Court  of  Claims  on  case  of 

Mississippi  Kiver,  levaes  of  the 

Mulleudore,  Daniel  M.,  report  of  Court  of  Claims  on  case  of.... 

N. 

National  Home  for  Disabled  Volunteer  Soldiers,  report  of  the  Board  of 
Managers  of  the,  for  1890 

Neidlinger,  Samuel,  estate  of,  report  of  Court  of  Claims  on  case  of 

New  Mexico,  the  secretary  of,  letter  from  the,  in  relation  to  Spanish 
land-grant  court 

New  York,  resolution  relative  to  fish  hatchery  in  northern 

Nichols,  Henry  C.,report  of  Court  of  Claims  on  case  of 

Norton,  Sarah  E. ,  report  of  Court  of  Claims  on  case  of 

Natt,  Jnlia  A.,  executrix,  report  of  Court  of  Claims  on  case  of 

P. 

Peacock,  Martha  A.,  report  of  Conrt  of  Claims  on  case  of 

Phelan,  Hon.  James,  eulogies  upon 

Phetzing 'Cornelius,  resolution  to  refer  claim  of,  to  Court  of  Claims.... 
Pierson,  Charles  A.,  et  a^,  resolution  to  refer  claims  to  Court  of  Claims. 

Ponder,  W.  M.,  administrator,  report  of  Court  of  Claims  on  case  of. 

Pope,  Henry  L. ,  report  of  Court  of  Claims  on  case  of.......... 

Public  property : 

Report  of  Clerk  of  House  of  Representatives  on,  in  possession  of. 

Report  of  Doorkeeper,  House  of  Representatives  on  sale  of  waste 
paper 


6 

10 

2 

7 

8 

125 

1 

3 

72 

57 


104 


103 


75 


4 
33 


30 

43 

114 

123 

127 

25 


38 
44 

96 
46 
119 
47 
82 


53 

135 

116 

111 

55 

94 

10 


VI 


INDEX    TO    HOUSE    MISCELLANEOUS    DOCUMENTS. 


Subject. ' 


Public  Property — Contiuued. 

Eeport  of  Doorkeeper,  House  of  Representatives,  submitting  inven- 
tory of 


Quinn,  Kobert,  report  of  Court  of  Claim  on  case  of ^ 

B. 

Raiford,  Philip,  administrator,  report  of  Court  of  Claims  on  case  of 

Reformed  Churcli,  Sharpsburgh,  Md.,  report  of  Court  of  Claims  on  case 

of 

Rogers,  Samuel  E.,  report  of  Court  of  Claims  on  case  of 

Roulette,  William,  report  of  Court  of  Claims  on  case  of 

Russell,  James  B.,  report  of  Court  of  Claims  on  case  of 

Russia,  relative  to  Jews  in .- 

S. 

SaflFold,  Mary  E.,  report  of  Court  of  Claims  on  case  of 

Secretary  of  War,  resolution  requesting  tbe,  to  furnish  information 
relative  to  retired  army  officers  in  the  civil  service 

Sitting  Bull,  Chief,  resolution  relative  to  arrest  and  killing  of 

Skaggs,  Ewing  M.,  estate  of,  report  of  Court  of  Claims  on  case  of 

Smith,  Grafton  F.,  administrator,  report  of  Court  of  Claims  on  case  of. 

Smithsonian  Institution,  report  of  expenditures  of  the 

Smithsonian  Institation,  annual  report  for  1890 

South,  William  B.,  executor,  report  of  Court  of  Claims  on  case  of 

Spanish  land-grant  court,  letter  from  the  secretary  of  New  Mexico  in 
relation  to 

Special  messengers.  House  of  Representatives,  resolution  for  appro- 
priation to  pay  salary  of 

Spencer,  C.  O.,  report  of  Court  of  Claims  on  case  of 

Stone,  Jeff.  M.,  report  of  Court  of  Claims  on  case  of 

Stout,  Lindsay,  representatives  of,  resolution  to  refer  claim  to  Court  of 
Claims 

Swart,  Barnett  T.,  report  of  Court  of  Claims  on  case  of 

T. 

Tally,  J.  M,  administrator,  report  of  Court  of  Claims  on  case  of 

Thompson,  Abel  A.,  report  of  Court  of  Claims  on  case  of 

Tounoir,  Lucile,  administratrix,  report  of  Court  of  Claims  on  case  of.. . 

Treasury  Department,  report  of  Second  Comptroller  in  relation  to  cer- 
tain claims  included  in  House  Ex.  Doc.  No.  314  Fifty-first  Congress, 
first  session 

Turner,  John,  report  of  Court  of  Claims  on  case  of 

Turuley,  Piirmenus  T.,  report  of  Court  of  Claims  od  case  of 

Tweedy,  Robert  E.,  report  of  Court  of  Claims  on  case  of 

V. 

Van  Camp,  Aaron,  report  of  Court  of  Claims  on  case  of 

Von  Balsan,  R.,  administrator,  report  of  Court  of  Claims  on  case  of 

Voters.     (See  Constitution  of  the  United  States.) 

Vulture,  Brig,  report  of  Court  of  Claims  on  case  of 

W. 

Waddell,  Charlotte  A.,  executrix,  report  of  Court  of  Claims  on  case  of. 
War  of  the  Rebellion,  Official  Records  of: 

Series  1,  vol.  31,  part  1 

Series  1,  vol.  31,  part  2 

Series.l,  vol.  31,  part  3 

Series  1,  vol.  '32,  part  1 


34 


18 

32 

29 

68 

124 

103 


99 

92 
80 
73 
52 
39 
129 
36 

96 

72 
70 
50 

109 
74 


56 

102 

23 


22 
58 
19 

89 


81 
27 


41 


69 

12 
13 
14 

76 


INDEX    TO    HOUSE    MISCELLANEOUS    DOCUMENTS. 


VII 


War  of  the  Rebellion,  Official  Records  of — Contiuned. 

Series  1,  vol.  32,  part  2 , 

Series  1,  vol.  32,  part  3 

Washingtoa  and  Georgetown  Railway  Company,  annual  report  of 

Walker,  Hon.  James,  eulogies  upon 

Watson,  Hon.  Lewis,  eulogies  upon 

Watson  Samuel  report  of  Court  of  Claims  on  case  of 

Western  Miama  Indians,  report  of  Court  of  Claims  on  case  of 

Wheeler,  William  B.,  executor,  report  of  Court  of  Claims  on  case  of 

Williams,  Mary  O.,  report  of  Court  of  Claims  on  case  of 

Woodyard,  Mathew,  report  of  Court  of  Claims  on  claim  of 

Y. 

ronng,  Thomas  P.,  et  aZ.,  resolution  to  refer  claims  to  Court  of  Claims.. 

Youngs,  Fannie,  and  Henrietta  6.,  executrics,  report  of  Court  of  Claims 

on  case  of 


Z. 


Zoological  Park  Commission,  final  report  of. 


No. 

Vol. 

77 

6 

78 

7 

91 

1 

134 

8 

133 

8 

15 

1 

83 

1 

49 

1 

20 

1 

88 

1 

112 

1 

31 

1 

93 


olST  Congress,  \  HOUSE  OF  EEPEESENTATiVES.    4  Mis.  Doc. 

2d  Session.      )  '  (    Ko.  137. 


DIGEST 


OB- 


CONTESTED-ELECTION  CASES 


TJSTBS 


FIFTY-FIRST  CONGRESS. 


COMPILED,   UNDER   RESOLUTION  OF  THE   HOUSE, 

BY 

CHESTER    H.    ROWELL, 
Clerk  to  thb  Committee  on  Elections. 


WASHINGTON: 

GOVERNMENT   PRINTING   OFFICE. 
1891. 


Resolved,  That  there  be  printed  and  bound  for  the  nse  of  the  House 
the  usual  number,  to  wit,  one  thousand  six  hundred  and  seven  copies 
of  the  Digest  of  Contested  Election  Cases  in  the  Fifty-first  Congress, 
together  with  an  index  to  the  same,  to  be  prepared  by  the  clerk  of  the 
Committee  on  Elections,  for  which  and  for  the  necessary  preparation 
and  superintendence  thereof  there  shall  be  paid  said  clerk  by  the  Clerk 
of  the  House,  out  of  the  contingent  fund,  the  sum  of  five  hundred  dol- 
lars j  said  sum  to  be  paid  when  the  manuscript  of  the  work  shall  have 
been  delivered  to  the  Public  Printer. 

Passed  the  House  February  5,  1891.  (See  Record,  Fifty -first  Con- 
gress, second  session,  pages  2198  to  2201.) 

3 


PREFACE 


The  volumes  of  this  series  are  known  by  custom  and  courtesy  as 
"  digests,"  but  none  of  them  have  attempted  to  be  anything  more  than 
compilations  of  reports,  and  since  the  volume  compiled  by  Clarke  and 
Hall,  in  1834,  none  of  them  have  been  fully  indexed,  and  most  of  them 
not  indexed  at  all.  In  conformity  with  the  plan  of  the  series,  this  vol- 
ume is  also  a  compilation  of  reports,  that  is,  it  contains  all  the  reports 
in  full;  but  an  attempt  has  been  made  to  give  in  the  index  a  real  digest 
of  the  law  points  discussed  in  the  reports.  It  is  i)erhap8  needless  to 
say  that  committee  reports,  having  the  form  of  arguments  addressed  to 
the  House,  lend  themselves  much  less  readily  to  reduction  to  digest 
form  than  do  the  decisions  of  courts.  A  consideration  of  this  difficulty 
will,  it  is  hoped,  explain  and  excuse  some  of  the  shortcomings  of  the 
digest. 

On  account  of  the  unindexed  condition  of  most  of  the  previous  vol- 
umes, I  have  ventured  to  include  under  each  head  of  the  digest  a 
reference  index  to  prior  adjudications  of  the  same  question,  where  any 
exist.  This  list  of  references  does  not  profess  to  be  complete;  it  is  con- 
fined to  the  points  covered  by  the  reports  in  this  volume,  and  may  not 
be  entirely  complete  even  as  to  them,  but  it  will  be  found  to  be  consid- 
erably fuller  than  the  lists  of  references  given  in  either  Paine  or  Mc- 
Orary,  and,  in  the  absence  of  any  collected  digest  of  all  the  Congres- 
sional cases,  may  be  of  some  convenience  in  looking  up  precedents.  No 
attempt  has  been  made  to  analyze  the  decisions  referred  to,  except  to 
indicate  the  question  decided,  and  generally  whether  the  decision  is  in 
substantial  accord  with  the  decision  in  this  volume  or  not. 

In  the  body  of  the  book  some  changes  have  been  made  from  the  cus- 
tomary form.  The  abstracts  of  law  points  are  fuller  than  heretofore, 
and  in  a  form  more  like  that  of  court  reports.  The  use  of  different  sorts 
of  type,  both  in  the  syllabi  and  index,  will,  it  is  hoped,  facilitate  rapid 
reference.*  In  addition  to  the  statements  of  law  points,  a  somewhat 
completer  statement  of  facts  and  findings  than  is  customary  has  been 
made.    An  election  case,  unlike  most  of  the  cases  included  iu  volumes 

"The  text  of  the  reports  being  printed  from  stereotype  plates  already  in  existence, 
it  was  necessary  to  insert  the  new  matter  on.  separate  pages,  regardless  of  whether 
it  would  evenly  fill  them  or  not.  This  accounts  for  the  gaps  and  blank  pages  be- 
tween the  head  notes  and  text. 


4  PREFACE. 

of  court  reports,  retains  an  individual  and  historical  interest,  and  some 
statement  should  be  made  in  the  head  notes  which  will  make  it  possible 
to  see  at  a  glance  precisely  what  the  individual  features  of  the  case  are. 
For  this  reason  a  brief  statement  is  made  of  the  claims  of  the  parties, 
the  findings  of  the  committee  in  regard  to  them,  and  the  points  and 
grounds  of  dissent  of  the  minority.  This  is  followed  by  an  outline  of 
the  history  of  the  case  in  Congress,  and  the  syllabus  of  law  points.  At 
the  beginning  of  the  minority  report  is  generally  a  fuller  statement  of 
the  grounds  of  dissent,  with  a  syllabus  of  law  points,  if  any  are  discussed. 
This  statement  is  made  on  account  of  complaints  made  by  members  in 
debate  in  regard  to  the  character  of  previous  volumes,  and  to  call  atten- 
tion to  features  of  this  volume  which  it  ought  perhaps  to  be  taken  for 
granted  that  any  such  volume  would  contain,  but  which,  for  some 
reason,  have  been  omitted  from  its  predecessors. 


TABLE  OF  CASES. 


Pag& 

1)  Smith  vs.  Jackson,  Fourth  West  Virginia 9 

Minority  report 35 

2)  Atkinson  vs.  Pendleton,  First  West  Virginia 43 

Minority  report 61 

3)  Featherston  vs.  Gate,  First  Arkansas 75 

Minority  report ...* 129 

4)  Mudd  vs.  Compton,  Fifth  Maryland 147 

Minonty  report 161 

5)  Threet  vs.  Clarke,  First  Alabama 173 

Minority  report 185 

6)  Posey  vs.  Parrett,  First  Indiana 187 

7)  Bowen  va.  Buchanan,  Ninth  Virginia 193 

Minority  report 201 

8)  Waddill  vs.  Wise,  Third  Virginia 203 

Minority  report 227 

9)  McDuf3fie  vs.  Turpin,  Fourth  Alabama 255 

Minoritj^  report 301 

0)  Chalmers  vs.  Morgan,  Second  Mississippi ,  329 

Views  of  Mr.  Honk 349 

1)  Langston  vs.  Venable,  Fourth  Virginia , 435 

Minority  report. 469 

2)  Miller  fs.  Elliott,  Seventh  South  Carolina 505 

Minority  report 533 

3)  Goodrich  vs.  Bullock,  Second  Florida 581 

Minority  report 595 

4)  McGinuis  vs.  Alderson,  Third  West  Virginia 631 

Minority  report 649 

5)  Clayton  vs.  Breckinridge,  Second  Arkansas 679 

Minority  report 711 

6)  Kemaghan  vs.  Hooker,  Seventh  Mississippi „ 783 

7)  Hill  vs.  Catchings,  Third  Mississippi ., 801 

Views  of  Mr.  Lacey 809 


All  the  contestees  were  Democrats;  all  the  contestants,  except  Mr.  Featherston, 
were  Republicans.  Cases  1, 2, 3, 4,  8, 9, 11, 12, 13, 14,  and  15  were  decided  by  the  com- 
mittee in  favor  of  contestants;  cases  .5,  6,  7,  10,  16,  and  17  in  favor  of  contestees. 
Cases  13, 14, 16,  and  17  were  not  reached  by  the  House.  The  case  of  Eaton  vs.  Phelan, 
Tenth  Tennessee,  was  not  decided  by  the  committee. 

5 


COMMITTEE    ON    ELECTIONS. 


FIFTY-FIRST  CONGRESS. 


L.  C.  HouK,  Tennessee. 

Wm.  C.  Cooper,  Ohio. 

KiLS  P.  Haugex,  Wisconsin. 

J.  F.  Lacey,  Iowa. 

John  Dalzell,  Pennsylvania. 

C.  A.  Bergen,  New  Jersey. 

F.  T.  Gueenualge,  Massachusetts. 


Jonathan  H.  Eowell,  Illinois,  Chairman. 

S.  G.  CoMSTOCK,  Minnesota. 

Charles  F.  Crisp,  GeoriTia. 

Charles  T.  O'Ferkall,  Virginia. 

J.  H.  Outhwaite,  Ohio. 

Levi  Maish,  Pennsylvania. 

L.  W.  MooRE,  Texas. 

E.  P.  C.  Wilson,  Missouri. 


Chester  H.  Rowell,  Cleric. 


AUTHORITIES    CITED    IN    REPORTS. 


Page. 

9  Ala.,  338 264 

13  Ala.,  885 264 

Archer  t78.  Allen,  Thirty-fourth  Congress 16 

Atkinson  vs.  Pendleton,  Fifty-first  Congress 223 

Bell  vs.  Snyder.  Forty-third  Congress  (Smith,  247) 223, 251 

Biddle  vs.  Wing,  Nineteenth  Congress  (C.  «feH.,504) 22-.>,250 

Bisbeeus.  Finley,  Forty-seventh  Congress  (2  Ells.,  172) 103,223,250,451 

Bradley  vs.  Slemons,  Forty-sixth  Congress  (1  Ells.,  29t)) 223 

Brazie  vs.  Commissioners  of  Fayette  Co.  (25  W,  Va.  ,213) 18 

Buchanan  vs.  Manning,  Forty-seventh  Congress  (2  Ells.,  287) 120,223,337 

Butler  vs.  Lehman,  Thirty-seventh  Congress  (1  Bart.,  353) 164 

Covodevs.  Fp8i;er,  Forty-first  Congress  (2  Bart.,  600,  611) 223 

Dean  V8.  Fields,  Forty-fifth  Congress  (1  Ells.,  190) 339 

English  vs.  Peelle,  Forty-eighth  Congress  (Mobley  167) 264 

Farrington  vs.  Turner  (53  Mich.,  27) ." 24 

Feathers! on  vs.  Cate,  Fifty-first  Congress 223,635 

Frost  vs.  Metcalfe,  Forty-fifth  Congress  (1  Ells.,  289) 223 

Fry,  Election  Cases  (71  Penna.  St.,  .302) 190 

Fuller  vs.  Davidson  (Dawson  ?),  Thirty-ninth  Congress  (2  Bart.,  126) 21 

Gooding  vs.  Wilson,  Forty-second  Congress  (Smith,  80) 164 

Harttvs.  Hervey  (19  Howard's  Practice,  N.Y., 245) 222,249 

Hey  wood,  fifth  ertition,  500 223 

James  vs.  The  State  (45  Miss.  R.,  575)... 353 

Lowry  vs.  White,  Fiftieth  Congress  (Mobley,  623)   125,635 

Lynch  vs.  Vandever,  Fiftieth  Cougress  (Mobley,  659) 168 

Mann  vs.  Cassidy  (1  Brewster,  Penna.,  60)   24 

McCraryon  Elections,  sees.  400,  401,  404 586 

104 591 

306,  438 303 

436-443,  533 164 

416 169 

Morton  vs.  Daily,  Thirty-seventh  Congress  (1  Bart.,  402) 16 

Mudd  vs.  Compton,  Fifty-first  Congress 223,251 

Newcum  vs.  Kirtley  (13  B.  Munroe,  515) _ 250 

Niblackvs.  Walls,  Forty-second  Congress  (Smith,  101) 223,250 

Page  vs.  Allen  (58  Penn.  St.,  338) 512 

Paine  on  Elections,  sees.  776,  787 47 

517 223 

496 520 

596 437 

599 :....      501 

340 512 

75a 164 

7 


8  AUTHORITIES    CITED    IN   REPOKTS. 

Page. 

Paine  on  Elections,  sec.  519 222 

373 21 

Pedigors.  Grimes  (112  Ind.,  148) 191 

People  t's.Batesdl  Mich.,  368) 520 

People  i"«.  Simonson  (5  N.  Y.,22) 24 

Porterfield  V8.  McCoy,  Fourteenth  Congress  (C.  &  H.,  267) 223 

Sessingbaus  vs.  Frost,  Forty-seventh  Congress  (2  Ells.,  380) 223,251 

Smalls  i3«.  Elliott  (minority),  Fiftieth  Congress  (Mobley,  706) 106 

Smith  vs.  Jackson,  Fifty-first  Congress  - 223 

Staters.  Judge  (13  Ala!,  805) 222,249 

Steele  v8.  Calhoun  (61  Miss.,  556)... 24 

Taylor  t;8.  Reading,  Forty-first  Congress  (2  Bart.,  661) 223 

Taylor  m  Taylor  (10  Minn.,  107) 21 

Thoebe  rs.  Carlisle,  Fiftieth  Congress  (Mobley,  523) 126 

Wallace  rs.  McKinley,  Forty-eighth  Congress  (Mobley,  185) 20,119 

Washburn  vs.  Voorhees,  Thirty-ninth  Congress  (2  Bart.,  54) 46,451 

Webster  vs.  Byrnes  (34  Cal,,  273) 222,249 

Whipley  »s.  McCune  (10  Cal.,  352) 21 

Yeates  vs.  Martin,  Forty-sixth  Congress  (1  Ells,,  386) 223,251 


OHAELES  B.  SMITH  vs.  JAMES  M.  JACKSON. 

FOURTH  WEST  VIRGINIA. 


The  governor  of  West  Virginia  issued  the  certificate  of  election  to 
Jackson.  Smith  claimed  that  the  certificate  of  election  should  have 
been  issued  to  him,  he  having  a  majority  of  the  votes  on  the  face  of 
the  returns,  and  also  that  he  had  received  a  majority  of  the  legal  votes 
actually  cast. 

Both  claims  are  sustained  by  the  committee,  the  minority  dissenting 
from  the  second  proposition  and  in  part  from  the  first.  (See  minority 
report,  page  35.) 

The  resolutions  presented  by  the  committee  were  adopted  by  the 
House,  February  3,  1890,  by  a  vote  of  166  to  0,  and  Mr.  Smith  was 
sworn  in.  The  debate  will  be  found  on  pages  948  to  1043  of  the  Eecord, 
but  from  page  948  to  page  1000  it  is  mostly  taken  up  with  the  parlia- 
mentary question  of  "  counting  a  quorum." 

(1)  Recount     When  to  be  demanded. 

Where  the  statute  provides  for  a  recount  at  the  demand  of  either 
party,  this  demand  need  not  be  made  on  the  day  of  the  announcement 
of  the  result  of  the  first  count. 

(2)  Mistake.    Power  of  board  to  correct. 

There  is  inherent  in  every  body  charged  with  the  ascertainment  of 
the  popular  will,  whether  its  functions  be  judicial  or  ministerial,  the 
power  to  correct  an  error  when  discovered,  and  to  make  its  conclusions 
conform  to  the  facts. 

(3)  Abbreviation.     The  word  "  fwe.^ 

Where  the  statute  requires  the  return  to  set  forth  the  number  of 
votes  received  "  in  words  at  length,"  the  word  "  twe "  can  not  be  con- 
strued to  mean  twelve  or  twenty  without  evidence.  It  should  either 
be  counted  as  two  or  the  ambiguity  explained  by  evidence. 

(4)  County  Court.    Power  in  West  Virginia  to  make  a  record. 

The  county  court  in  West  Virginia  has  the  power  to  make  a  record 
of  its  proceedings  in  regard  to  elections.  "  There  is  inherent  in  every 
such  tribunal,  and  necessarily  incident  to  its  very  purpose  and  existence, 
the  power  to  make  such  record  as  will  perpetuate  and  make  available  its 
legitimate  action."    And,  aside  from  general  principles,  it  appears  from 


10  SMITH   VS.   JACKSON. 

an  examiuation  of  the  legislation  of  West  Virginia  on  the  subject  that 
the  county  court  is  more  than  a  mere  returning  board. 

(5)  Burden  of  Proof. 

When  it  is  shown  that  the  contestant  was  elected  on  the  face  of  the 
returns  the  burden  of  proof  shifts  to  the  contestee. 

(6)  Officers  of  Election.    Not  sworn. 

When  all  the  officers  are  not  shown  to  have  been  sworn,  but  no  harm 
has  resulted,  it  will  not  vitiate  the  election,  they  being  de  facto  officers. 
And  in  West  Virginia,  where  it  is  provided  that  the  fact  of  taking  the 
oath  must  either  appear  on  the  poll-books  or  be  proved  to  the  satisfaction 
of  the  commissioners  of  the  county  court  before  they  can  count  the  vote 
of  a  precinct,  and  the  county  commissioners  did  count  the  vote  of  a  pre- 
cinct where  the  oath  was  not  sufficiently  certified  on  the  poll-books,  it 
will  be  presumed  that  they  had  satisfied  themselves  of  the  fact  by  other 
evidence  before  counting  the  vote. 

(7)  Statutes.    Directory  and  mandatory. 

Statutes  directing  the  mode  of  proceeding  of  public  officers  are  direc- 
tory merely,  unless  there  is  something  in  the  statute  itself  which  plainly 
shows  a  different  intent. 

(8)  Polling  place.     Change  of. 

When  the  election  is  held  at  a  different  place  from  that  required  by 
law  it  does  not  vitiate  the  election  if  injury  has  not  resulted  and  the 
place  of  voting  was  generally  understood. 

(9)  Vote.     Presumption  of  legality. 

A  vote  accepted  by  the  officers  holding  the  election  is  prima  facie  legal, 
and  can  not  be  thrown  out  for  illegality  unless  the  presumption  of  legality 
is  overthrown  by  a  clear  preponderance  of  competent  evidence. 

(10)  Evidence.     What  competent  to  show  how  a  vote  was  cast. 

In  the  absence  of  direct  proof  as  to  how  a  voter  voted,  evidence  show- 
ing to  what  political  party  he  belonged,  whose  election  he  advocated, 
whose  friends  sustained  his  right  to  vote,  and  kindred  testimony  may 
be  admitted. 

(11)  Evidence.     Of  declarations  of  voter. 

What  the  voter  said  at  the  time  of  voting  is  admissible  as  part  of  the 
res  gestae  ;  but  what  he  said  after  the  day  of  the  election  either  as  to  his 
qualifications,  or  how  he  voted,  or  whether  he  voted,  is  inadmissible. 

(12)  Person  of  nnsonnd  mind. 

A  person  having  sufficient  intelligence  to  make  a  valid  will,  or  to  bind 
himself  by  ordinary  contracts,  or  to  be  criminally  responsible  for  his 
acts,  is  a  person  of  sound  mind  for  the  purposes  of  voting. 

(13)  Pauper.    Definition  of. 

A  pauper  is  one  who  is  continuously  supported  in  whole  or  in  part 
out  of  funds  provided  by  the  public  authorities  for  that  purpose. 

(14)  Eesidence.     What  constitutes^ 


SMITH   VS.    JACKSON.  11 

It  takes  both  act  and  intention  to  constitute  a  residence.    An  inten- 
tion to  retain  a  residence  which  has  been  left  must  be  an  intention 
actually  to  return  to  it  and  reside  in  it. 
(15)  Residence.     Of  corporation  employes. 

Where  the  statute  provides  that  no  person  shall  be  deemed  a  resi- 
dent in  any  county  or  district  by  reason  of  being  employed  therein  by 
any  corporation,  such  employment  is  not  to  be  construed  as  preventing 
anyone  from  acquiring  a  residence  at  the  place  of  his  employment. 


REPORT 


JANUAEY  23, 1890.— Mr.  Dai^zell,  from  the  Committee  on  Elections, 
submitted  the  following  report: 

The  Committee  on  Elections,  having  had  uader  consideration  the  con- 
tested-election case  of  Charles  B.  Smith,  contestant,  against  James  M. 
Jackson,  contestee,  from  the  fourth  district  of  West  Virginia,  s  ibmit 
the  following  report : 

At  an  election  held  on  the  6th  day  of  November,  1888,  James  M.  Jack- 
son and  Charles  B.  Smith  were  the  Democratic  and  Eepublican  candi- 
dates, respectively,  for  election  as  Kepresentative  to  the  Fifty-first  Con- 
gress from  the  Fourth  Congressional  district  of  West  Virginia.  The 
former  obtained  the  governor's  certificate  and  now  holds  the  seat.  His 
right  to  either  is  contested  by  Smith,  who  claims  that  he  was  eutitled 
to  the  certificate  in  the  first  instance,  and  according  to  the  votes  legally 
cast  is  now  entitled  to  the  seat. 

The  issue  to  be  determined  by  the  committee  involves  both  these 
claims. 

Was  the  contestant  elected  upon  the  face  of  the  returns  ? 

It  would  seem  that  the  contestee  originally  conceded  that  he  was. 
Contemporaneously  with  the  issue  by  the  governor  of  a  certificate  of 
election  to  the  contestee  he  made  public  a  proclamation  or  declaration 
not  called  for  by  any  provision  of  law,  the  purpose  of  which  evidently 
was  to  justify  his  action  in  issuing  the  certificate.     (See  Record,  p.  866.) 

In  this  proclamation  the  governor  says : 

J.  M.  Jackson,  who  was  a  candidate  for  Eepresentative  in  Congress  for  the  Fourth 
Congressional  district,  alleges  that  at  two  polling  places  at  least,  in  Putnam  County, 
the  election  was  held  at  other  and  different  places  than  those  prescribed  by  law,  and 
that  motions  were  made  before  said  commissioners  to  exclude  these  polls  from  the 
count,  which  the  commissioners  refused  to  do,  and  that  the  majority  of  171  votes  in 
said  county  in  favor  of  C.  B.  Smith  for  said  office  is  made  up  in  part  by  the  returns 
from  said  two  poUing  places.  It  is  insisted  by  said  .Jackson  that  under  our  statutes 
it  is  in  the  power  of  the  governor  to  go  behind  the  returns  and  inquire  into  the  pro- 
ceedings of  the  county  commissioners.  Oo  the  contrary  it  is  insisted  by  said  Smith, 
through  his  counsel,  that  "the  intention  of  the  legislature  was  to  withdraw  from  the 
governor  all  power  over  the  election  returns  whatsoever,  except  the  certifying  of 
what  appeared  in  the  office  of  the  executive  department  of  the  State." 

The  governor's  decision  was  that  he  could  not  go  behind  the  returns ; 
but  it  is  very  clear,  trom  his  statement,  that  prior  to  the  issue  of  any 
certificate,  the  contestee  was  of  opinion,  upon  the  face  of  the  returns, 
that  the  certificate  must  be  issued  to  the  contestant. 

The  subsequent  action  of  the  contestee  is  consistent  with  and  in 
affirmance  of  his  original  concession. 

13 


14  SMITH    VS.    JACKSON. 

The  coutestant  in  his  notice  of  contest  (Eecord,  p.  22)  offered  to 
rest  his  claim  to  office  on  the  face  of  the  returns.  The  issue  thus  tend- 
ered the  contestee  declined,  adhering  evidently  to  his  original  opinion 
that,  tested  by  that  standard,  he  had  no  title  to  the  seat  he  now  holds. 

It  is  xGvy  plain  to  the  committee  that  the  contestant  was' elected  upon 
the  face  of  the  returns  and.  entitled  to  the  certificate  from  the  gov- 
ernor. 

Under  the  laws  of  West  Virginia  (Code,  sec.  22,  ch.  3)  it  is  made  the 
duty  of  the  commissioners  of  the  county  courts  in  each  Congressional 
district,  to  transmit  to  the  governor  a  certificate  of  the  result  of  the  elec- 
tion within  their  respective  counties,  "  and  in  the  said  certificate  shall 
be  set  forth,  according  to  the  truth,  the  lull  name  of  every  person  voted 
for,  and  in  words  at  length  the  number  of  votes  he  received  for  any 
office." 

The  Fourth  Congressional  district  is  constituted  of  twelve  counties, 
and  the  aggregate  vote  ai)pearing  from  the  certificates  therefrom  trans- 
mitted to  the  governor  in  accordance  with  law  was,  as  contestant 
claims — 

Votea. 

For  Jackson 19,825 

For  Smith 19,837 

Showing  a  plurality  for  Smith  of  12  votes.     According  to  this  state- 
ment Smith,  and  not  Jackson,  was  entitled  to  the  governor's  certificate 
of  eh'ction. 
But  the  count  as  made  by  the  governor  was — 

Voteg. 

For  Jackson 19,837 

For  Smith 19,834 

Showing  a  plurality  for  Jackson  of  3  votes. 

The  differences  between  the  county  returns  and  the  governor's 
count  are  confined  to  three  counties,  viz :  Ritchie,  Calhoun,  and  Pleas- 
ants. 

The  commissioners  of  Ritchie  County  sent  two  certificates.  One, 
dated  November  13,  shows — 

Votes. 

For  Smith 1,972 

For  Jackson 1, 405 

The  second,  dated  November  14,  shows — 

Votes. 

For  Smith 1,973 

For  Jackson 1,403 

The  second  certificate  correctly  represented  the  result  of  a  recount  of 
the  votes,  made  at  the  instance  of  the  contestee.  The  governor  ac- 
cepted the  first  and  rejected  the  second  certificate,  and  thus  took  away 
from  Smith  one  vote  and  added  to  Jackson  two  votes. 

The  law  of  West  Virginia  with  respect  to  a  count  and  recount  of  re- 
turns is  as  follows  (Code,  sec.  21,  ch.  3): 

The  commissioners  of  the  county  court  shall  convene  in  special  session  at  the 
court-house  on  the  fifth  day  (Sundays  excepted)  after  every  election  held  in  their 
county,  or  in  any  district  thereof,  and  the  officers  in  whose  custody  the  ballots,  poll- 
books,  and  certificates  have  been  placed  shall  lay  the  same  before  them  for  examina- 
tion. They  may,  if  deemed,  necessary,  require  the  attendance  of  any  of  the  commis- 
sioners or  canvassers,  or  other  officers  or  persons  present  at  the  election,  to  answer 
questions  under  oath  respecting  the  same,  and  may  make  such  other  orders  as  shall 
seem  proper  to  procure  correct  returns  and  ascertain  the  true  result  of  the  said  elec- 
tion in  their  county.  They  may  adjourn  from  time  to  time,  and  when  a  majority  of 
the  commissioners  is  not  present  their  meeting  shall  stand  adjourned  till  the  next 


SMITH    VS.    JACKSON.  15 

day,  and  so  from  day  to  day  till  a  qnorum  be  present.  Tbey  shall,  upon  the  demand 
of  any  candidate  voted  for  at  such  election,  open  and  examine  any  one  or  more  of  the 
sealed  packages  of  ballots  and  recount  the  same,  but  in  sucb  case  they  shall  seal  up 
the  same  again,  etc. 

It  seems  from  the  second  certificate  from  Eitchie  Couuty  that  the 
contestee  was  dissatisfied  with  the  first  couut  there  made,  and  de- 
manded, as  he  had  a  right  to  do,  a  recount.  This  certificate,  so  far  as 
material,  the  law  just  quoted  shows  as  follows: 

The  commissioners  of  the  county  court  of  Ritchie  County,  West  Virginia,  having 
carefully  and  impartially  examined  the  returns  of  tbe  election  held  in  said  county  in 
each  district  thereof  on  the  6th  day  of  November,  1888,  upon  a  recount  of  the  bal- 
lots on  the  demand  of  J.  M.  Jackson,  candidate  voted  for  at  said  election  for  the  office 
of  Representative  in  the  Congress  of  the  United  States,  do  hereby  certify  that  in  said 
county  for  the  office  of  Representative  in  the  Congress  of  the  United  States  for  the 
Fourth  Congressional  district  of  West  Virginia — 

Charlt-s  B.  Smith,  of  Wood  County,  received  nineteen  hundred  and  seventy-three 
(1,97:^)  votes. 

J.  M.  Jackson,  of  Wood  County,  received  fourteen  hundred  and  three  (1,403)  votes. 

O.  W.  Smith  received  one  vote. 

Judge  Jackson  received  one  vote. 

In  witness  whereof  we,  the  said  commissioners,  have  hereto  signed  our  names  this 
14th  day  of  November,  A.  D.  1888,  &c. 

This  certificate  the  governor  ignored  altogether,  and  the  contestee 
now  seeks  to  justify  his  action  by  saying  that  upon  the  making  of  the 
original  certificate  the  county  court  was  functus  officio,  powerless  even 
to  correct  an  error;  and  that  a  recount  cau  be  had  only  when  the  de- 
mand therefor  is  made  prior  to  the  issue  of  a  certificate.  This  conten- 
tion is  directly  in  the  teeth  of  the  coutestee's  own  action  in  demanding 
the  recount,  and  is  not  in  the  judgment  of  your  committee  tenable  on 
any  ground. 

The  manifest  purpose  of  the  law  in  providing  for  a  recount  is  that  er- 
rors may  be  corrected.  There  can  be  no  recount  until  there  has  been 
a  perfec  ed  count.  Whether  a  recount  shall  be  necessary  can  not  be 
determined  till  the  first  count  is  finished.  No  provision  is  made  in  the 
law  as  to  tlie  time  when  the  recount  must  be  demanded.  There  is  no 
statute  of  limitations  on  the  subject.  To  hold  that  a  recount  must  be 
demanded  on  the  day  of  the  original  count  leads  to  the  manifest  ab- 
surdity, of  requiring  the  candidate  to  be  present,  in  person  or  by  proxy, 
in  as  many  different  places  as  there  are  couuty  courts  in  his  district  at 
one  and  the  same  time.  In  the  district  in  question  there  are  twelve 
counties. 

If  the  recount  was  lawful,  as  undoubtedly  it  was,  so  then  was  the 
certificate  of  its  result,  and  the  governor  exceeded  his  powers  in  ac- 
cepting the  first  and  ignoring  the  second  certificate  from  Ritchie 
County. 

He  committed  a  similar  error  with  respect  to  Calhoun  County. 

The  commissioners  of  that  county  also  returned  two  certificates. 
The  first,  dated  November  12,  1888,  showed  for  Jackson  919  votes,  for 
Smith,  630.  The  second,  made  to  correct  a  clerical  error,  showed  the 
same  number  of  votes  for  Jackson,  but  632  votes  for  Smith  instead  of 
630,  and  is  as  follows : 

(Record,  p.  857.)  At  a  regular  session  of  the  county  court  of  Calhoun  County, 
held  at  the  Court  House  of  said  county  on  Monday,  the  7th  day  of  January,  1889,  on 
motion  of  A.  J.  Barr,  it  is  ordered  by  thi^  court  that  the  returns  of  the  election  held 
in  this  county  on  the  6th  day  of  November,  188-s,  as  certified  by  the  county  court, 
held  on  the  1-^th  day  of  November,  1888,  be  corrected,  it  appearing  to  the  court  that 
there  is  a  clerical  error  in  the  returns  as  certified,  to  wit :  That  the  record  of  the  re- 
Bult  of  said  election  for  a  Representative  in  the  Congress  of  the  United  States  shows 
that  Charles  B.  Smith  received  six  hundred  and  thirty  votes,  which  should  have 
b«en  C.  B.  Smith  received  six  hundred  and  thirty-two  votes. 


16  SMITH   VS.   JACKSON. 

It  is  therefore  ordered  by  this  court  that  the  record  of  this  count  be  corrected,  so  aa 
to  show  that  C.  B.  Smith  received  six  hundred  and  thirty-two  votes,  as  shown  on 
the  face  of  the  returns  of  said  election,  and  that  a  copy  of  this  order  be  certified  to 
the  governor  of  this  State,  and  to  C.  B.  Smith,  at  Park'ersburg,  W.  Va. 

The  Goveruor  ignored  this  second  certificate  and  thus  deprived 
Smith  of  two  votes.  He  assigned  no  reason  for  his  action,  but  counsel 
for  contestee  now  seek  to  justify  it  on  the  grounds  hereinbefore  stated 
— that  upon  the  making  of  the  first  certificate  the  county  court  was 
functus  officio^  and  had  no  power  to  correct  an  error,  however  plain  and 
palpable,  after  the  certificate  had  been  issued. 

It  has  been  held  that  where  the  judges  of  election  discover  a  mistake 
upon  a  recount  of  the  ballots,  their  supplemental  return  is  entitled  to 
be  received  (Archery.  Allen, Thirty  fourth  Congress);  and  that  errors, 
whether  fraudulent  or  accidental,  may  be  corrected  at  any  time,  even 
after  certificate  of  election  issued  by  the  governor.  (Butler  v.  Labman, 
Thirty-seventh  Congress;  Morton  v.  Daily,  Thirty-seventh  Congress.) 

It  is  believed  that  there  is  inherent  in  everybody  charged  with  the 
ascertainment  of  the  popular  will,  whether  its  functions  be  judicial  or 
ministerial,  the  power  to  correct  an  error  when  discovered  and  to  make 
its  conclusions  express  the  true  will  of  the  people  as  disclosed  by  their 
suffrages.  And  it  is  especially  to  be  noted  that  there  is  no  suggestion 
from  any  quarter  that  the  certificates  from  Ritchie  and  Calhoun  Coun- 
ties, ignored  by  the  governor,  did  not  accurately  show  the  exact  num- 
ber of  votes  legally  cast  for  the  respective  candidates,  while  on  the  con- 
trary it  expressly  appears  that  they  did  so  show. 

But  the  technicalities  which  unfortunately  prevailed  in  the  mind  of  the 
governor  to  defeat  in  part  the  true  will  of  the  voters  in  Ritchie  and  Cal- 
houn Counties  would  not  have  affected  the  result  had  he  stopped  there, 
and  they  dwindle  into  insignificance  when  compared  with  the  results  of 
the  strange  mental  process  by  which  the  returns  from  Pleasants  County 
were  perverted. 

According  to  the  returns  from  that  county,  Smith  had  received  697 
votes  and  Jackson  802  votes.  These  802  votes  the  governor  raised  to 
812  by  a  most  extraordinary  feat  of  political  legerdemain.  We  quote 
from  his  unauthorized  proclamation  or  declaration  to  which  we  have 
heretofore  referred,  as  follows . 

The  commigsioners  of  Pleasants  County  certify  as  to  J.  M.Jackson's  vote  as  follows: 
"J.  M.  Jackson  received  eight  hundred  and  ttce  votes."  The  words  and  letters  are 
too  plain  for  any  mistake.  For  the  reasons  heretofore  given  there  is  no  authority  to 
go  behind  the  returns.  The  vote  certified  must  be  counted  if  enough  appears  to  as- 
certain the  meaning.  In  an  action  upon  a  note  it  was  held  :  "There  was  uo  error  in 
admitting  the  note  sued  on  in  evidence,  because  the  amount  thereof  is  written  four 
huM        and  two  and  50-100  dollars."     {Glenn  vs.  Porter,  72  Ind.,  p.  525.) 

So  it  has  been  held  that  the  abbreviation  in  a  declaration,  "Damages  one  thmis 
dollars"  is  not  error.     (1  W.  L.  J.,  Mich.,  395.) 

If  enough  appear  to  make  the  return  intelligible  it  should  be  made  so. 

This  can  not  be  done  without  striking  out  one  letter  and  inserting  another,  or  by 
supplying  the  seemingly  omitted  letters.  Acting  upon  the  face  of  the  paper  the  lat- 
ter appears  more  in  consonance  with  adjudged  cases.  The  least  number  would  give 
to  said  Jackson  eight  hundred  and  twelve  votes.     It  will  be  so  entered. 

Thus  the  goveruor.  It  is  difificult  to  treat  this  matter  seriously.  It 
seems  like  a  farce  to  argue  about  it.  It  is  hard  to  believe  that  any 
mature  man,  of  ordinary  intellect,  and  even  to  an  extent  honest,  when 
dealing  with  the  sacred  right  of  suffrage  could  cheat  himself  into  a 
justification  of  such  conduct,  much  less  expect  to  cheat  anybody  else. 
The  very  fact  that  the  governor  issued  to  the  public  his  extraordinary 
proclamation  explaining  his  reasons  for  granting  to  the  contestee  the 
certificate  which  plainly  belonged  to  the  contestant  is  a  confession  of 


SMITH    VS.    JACKSON.  17 

guilt.  The  puerile  reference  to  law  cases,  one  bearing  on  the  construc- 
tion of  a  promissory  note,  the  other  on  a  declaration,  neither  of  them 
having  the  remotest  possible  analogy  to  the  question  in  hand  shows 
the  straits  to  which  tbe  consciously  guilty  party  was  driven.  The  g'ov- 
ernor  knew — could  not  help  knowing — even  if  a  poor  penman  omitted  to 
close  his  o  so  that  the  word  looked  like  t-w-  e,  instead  of  two,  that  the  word 
intended  was  two.  Upon  general  principles  he  was  bound  to  presume 
that  the  three  letters  exi)ressed  the  whole  word,  but  he  was  especially 
bound  to  so  assume  in  this  case,  because  the  law,  of  which  he  pretended 
to  be  so  tender,  required  that  "  the  certificate  shall  set  forth,  according 
to  the  truth,  the  full  name  of  every  person  voted  for,  and  in  words  at 
length  the  number  of  votes  he  received  for  any  office J^ 

The  law,  therefore,  told  him  that  the  word  about  which  he  pretended 
to  doubt  was  not  an  abbreviation  but  a  number  written  in  words  at 
length.  He  gratuitously  assumed  the  violation  of  this  law  by  the  county 
court  making  the  certificate,  as  well  as  dirt  violence  to  the  commonest 
kind  of  common  sense  when  he  tortured  these  three  letters  into  the  word 
"twelve." 

He  knew  furthermore  that  "twe^is  not  dow,  never  was,  and  probably 
never  will  be  amongst  sane  men  an  abbreviation  of  twelve,  or  of  twenty, 
or  of  any  number  known  to  an  American.  And  he  knew  again  that 
the  letters  were  intended  to  express  a  number,  and  that  there  is  no  num- 
ber known  to  the  English  language  written  with  three  letters,  the  first 
of  which  is  "t"  and  the  second  "  w"  except  the  single  number  two. 

But  even  if  it  were  conceded  that  there  could  possibly  have  been  a 
doubt  as  to  what  the  word  meant,  then  it  was  a  patent  ambiguity,  which 
any  law  student  could  have  told  the  governor  it  was  his  duty  to  ex- 
plain by  evidence.  This  he  was  bound  to  do,  and  could  very  readily 
have  done,  as  will  clearly  appear  hereafter.  Had  it  been  impossible  for 
him  to  do  so,  the  only  legal  alternative  remaining  was  to  strike  out  the 
word  altogether  as  insensible,  and  read  the  return  800. 

Neither  process  would  have  given  the  certificate  to  the  contestee. 
The  governor  therefore  guessed  enough  to  give  to  that  gentleman 
three  of  a  majority. 

The  true  vote  in  Pleasants  County  for  Jackson  was  802,  and  not  812. 
Nobody  now  claims,  nor  did  anybody  ever  claim,  that  it  was  in  fact 
anything  else. 

Counsel  for  contestee,  however,  without  attempting  to  defend  a  trick 
indefensible,  ingeniouslj-  argued  before  the  committee  that  the  governor 
had  no  legal  standard  by  which  to  explain  the  so-called  doubtful  word, 
and  that  no  competent  legal  evidence  has  been  produced  by  the  con- 
testant, to  show  that  the  true  vote  in  Pleasants  County  was  other  than 
as  counted  by  the  governor. 

The  argument  is,  that  under  the  laws  of  West  Virginia  the  commis- 
sioners of  the  county  "court  do  not  constitute  in  any  proper  sense  a  court 
of  record,  but  are  merely  a  returning  board,  having  no  judicial  func- 
tions, except  when  making  a  recount,  and  no  authority  to  evidence 
their  action  except  by  the  issue  of  a  single  certificate,  which  is  to  be 
sent  to  and  deposited  with  the  governor. 

Upon  the  faith  of  this  proposition  it  is  contended,  that  the  only  legal 
record  evidence  of  the  vote  in  Pleasants  County,  as  ascertained  by  tbe 
county  court,  is  the  certificate  sent  to  the  governor,  and  that  the  cer- 
tificates procured  by  the  contestant  from  the  clerks  of  the  county 
courts  and  offered  in  evidence,  showing  the  results  of  the  elections  iu 
the  several  counties,  are  not  competent  evidence. 
H.  Mis.  137 2 


18 


SMITH    VS.    JACKSON. 


These  certificates,  it  is  contended,  were  made  without  authority  of 
law,  ajid  at  the  instance  of  a  court  having  no  right  to  make  a  record. 

In  support  of  this  proposition  counsel  cited  Krazie  v.  the  Commis- 
sioners ot  Fayette  County,  decided  by  the  supreme  court  of  West  Vir- 
ginia, and  reported  in  25  W.  Va.,  p.  213.  In  the  judgment  of  the  com- 
mittee, that  case  does  not  sustain  the  contention.  The  quCvStion 
material  here  does  not  seem  to  have  been  necessarily  involved  in  the 
case  at  all.  The  case  arose  upon  an  application  for  a  writ  of  prohi- 
bition, to  restrain  the  commissioners  of  a  county  court  from  going  into 
a  jndi<;ial  examination  in  an  election  case  outside  of  the  returns  made 
to  them,  to  ascertain  whether  the  precinct  commissioners  had  certified 
and  returned  certain  votes  not  entitled  to  have  been  cast. 

The  court  held,  that  the  judicial  functions  of  the  county  court  in  an 
uncontested  election  case  did  not  extend  beyond  the  ascertainment  of 
the  result  from  the  papers  laid  before  them,  and  whether  such  papers 
are  in  fact  such  genuine,  intelligible,  and  substantially  authenticated 
returns  as  are  required  by  law. 

True,  in  the  course  of  the  opinion  the  judge  delivering  it  said,  that  if 
the  power  of  the  commissioners  were  enlarged  so  as  to  include  powers 
beyond  those  mentioned  they  would  be  made  a  tribunal  by  implication 
only,  and  "a  tribunal  which  keeps  no  record  of  its  proceedings,  and 
from  whose  judgmeut  there  lies  no  writ  of  error  or  appeal,"  but  the  case 
is  as  well  decided  without  this  sentence  as  »vith  it;  it  has  no  reference 
to  any  question  necessarily  involved  in  the  issue,  and  is  the  merest 
dictum.  Moreover  the  record  here  referred  to  is  not  the  record  of  what, 
under  the  court's  decision,  the  commissioners  of  the  county  court  had 
authority  to  do,  but  a  record  of  what  they  had  no  power  to  do.  It 
is  not  the  existing  tribunal  of  which  the  court  is  speaking,  but  of  a  tri- 
bunal to  exist  only  by  implication. 

Even  if  it  be  conceded  that  the  functions  of  the  county  court  are  min- 
isterial, and  that  in  their  exercivse  it  makes  no  such  record  as  imparts 
absolute  verity,  and  to  which  a  bill  of  exceptions  will  lie,  still  it  by  no 
means  follows  that  it  makes  no  record  at  all.  There  is  inherent  in 
every  such  tribunal  and  necessarily  incident  to  its  very  purpose  and 
existence,  the  power  to  make  such  record  as  will  i)erpetuate  and  make 
available  its  legitimate  action.  This  is  a  ])rinciple  of  universal  appli- 
cation. 

But  aside  altogether  from  general  principles  it  will  sufficiently  appear 
from  an  examination  of  the  legislation  of  West  Virginia  on  the  subject 
of  elections,  taking  that  legislation  as  a  whole,  that  the  county  court  is 
more  than  a  mere  returning  board. 

To  that  court  is  intrusted  the  duty  of  fixing  voting  places.  (Code, 
sec.  o,  ch.  3.) 

To  it  are  intrusted  also  the  power  and  duty  of  naming  election  com- 
missioners.    {Ibid.,  sec.  G.) 

To  it  are  returned  certificates  from  the  district  canvassers,  the  bal- 
lots cast,  and  one  set  of  the  poll-books.  Its  clerk  is  made  by  law  the 
custodian  of  these  records.     {Ibid.,  sec.  20.) 

When  about  to  exercise  the  functions  of  the  county  court  with  respect 
to  election  returns  the  connnissioners  convene  in  special  session.  The 
court  "O  convened  has  power  to  summon  witnesses,  to  administer  oaths, 
"to  make  such  orders  as  shall  seem  proper  to  procure  correct  returns, 
and  ascertain  tlie  true  result"  of  the  election.  It  has  power  to  make  a 
recount,  and  is  charged  with  the  duty  of  so  doing  ui)on  demand 
properly  made.  A  court  which  is  a  mere  returning  board,  of  course, 
would  not  need  to  meet  in  special  session.    Such  board  necessarily 


SMITH   VS.    JACKSON.  19 

would  have  only  one  kind  of  session,  not  two  kinds,  an  ordinary  and  a 
special  session. 

Provision  is  expressly  made  by  section  4G,  Acts  1881,  chapter  5,  for  a 
complete  record  of  all  the  proceedings  of  the  county  court,  both  those 
which  relate  to  its  general  jurisdiction,  exercised  at  its  ordinary  sessions, 
and  those  which  relate  to  its  exceptional  jurisdiction  exercised  at  its 
special  sessions.    The  provision  is : 

The  county  court  of  every  county  shall  provide  two  record  books  for  the  use  of  the 
court,  in  one  of  which  shall  be  entered  all  the  proceedings  of  the  said  court  in  rela- 
tion to  contested  elections ;  all  matters  of  probate ;  the  appointment  of  appraisers  of 
the  estates  of  decedents,  and  the  appointment  and  qualification  of  personal  repre- 
sentatives, guardians,  committees,  and  curators,  and  the  settlement  of  their  accounts ; 
all  matters  relating  to  apprentices,  and  in  the  other  of  said  books  shall  be  etitered  all  the 
other  proceedings  of  the  said  court. 

But  in  addition  to  the  record  thus  provided  for,  there  are  other  pro- 
visions of  the  law  with  which  the  position  assumed  by  contestee's  coun- 
sel and  now  under  discussion  are  inconsistent. 

By  section  22  it  is  prescribed  that  when  an  election  is  held  in  a  county 
or  district  for.  any  or  all  of  some  twenty-two  different  oflBcers — State, 
county,  and  Federal — "  the  commissioners  of  the  county  court,  or  a  ma- 
jority of  them,  *  *  *  shall  carefully  and  imi)artially  ascertain  the 
result  of  the  election  in  their  county,  and  in  each  district  thereof,  and 
make  out  and  sign  as  many  ceriijicates  thereof  as  may  he  necessary. 
•  •  *  The  said  commissioners  shall  sign  separate  certificates  of  the 
result  of  the  election  within  their  county /or  each  of  the  offices  specified 
in  this  section  which  is  to  be  filled ; "  that  is,  separate  certificates  for 
each  of  the  twenty  different  offices.  State,  county,  and  Federal. 

Section  23,  still  preserving  the  plural  number  and  speaking  of  cer- 
tificates, makes  provision  for  the  disposition  of  these  certificates.  As 
to  certain  offices,  one  of  the  certificates  is  io  go  to  the  governor ;  as  to 
certain  other  offices,  one  is  to  go  to  the  secretary  of  state ;  as  to  certain 
offices,  one  is  to  go  to  some  designated  public  officer ;  the  other  to  the 
candidate  elected. 

In  all  cases,  with  respect  to  every  office,  it  is  the  duty  of  the  court  to 
sign  separate  certificates.  As,  of  the  separate  certificates  directed  to  be 
made  in  the  case  of  a  candidate  for  Congress,  one  only  is  to  go  to  the 
governor,  and,  as  no  provision  is  made  for  the  giving  of  the  other  to  the 
candidate  or  to  any  public  officer,  it  necessarily  remains  with  the  clerk 
of  the  court. 

By  section  5  of  chapter  130  (code  of  West  Yirginia) — 

A  copy  of  any  record  or  paper  in  the  clerk's  office  of  any  court,  or  in  the  office  of 
the  secretary  of  state,  treasurer,  or  auditor,  or  in  the  office  of  surveyor  of  lands  of  any 
county  attested  by  the  officer  in  whose  office  the  same  is,  may  be'  admitted  as  evi- 
dence in  lieu  of  the  original. 

Your  committee  are  therefore  clearly  of  the  opinion  that,  under  the 
laws  of  West  Virginia,  it  was  competent  for  the  governor  and  it  was 
his  duty,  to  make  intelligible  if  unintelligible  the  certificate  as  to  the 
vote  in  Pleasant  County,  by  consulting  the  certificate  and  record  of  that 
vote  on  file  in  the  clerk's  office  of  that  county,  and  that  in  default  of 
his  having  done  so  it  is  competent  for  them  and  is  their  duty  now  to 
do  it. 

It  is  conceded  that  ever  since  the  passage  of  the  West  Virginia  act 
of  1882,  which  we  have  been  discussing,  it  has  been  the  custom  of  the 
county  court  to  keep  on  file  a  dai)licate  certificate,  showing  its  conclu- 
sions with  respect  to  the  election  of  a  Kepresentative  to  Congress. 
Such  being  the  case,  even  if  your  committee  were-not  impressed  with 


20  SMITH    VS.    JACKSON. 

the  belief  that  the  argument  now  made  by  the  contestee  involves  no 
more  than  a  mere  technicality  without  merit,  they  would  still  consider 
that  the  adoption  by  them  now  of  a  new  construction  of  the  law,  con- 
trary to  that  so  long  generally  adhered  to  as  the  true  one,  would  be  on 
their  part  a  crime  not  very  much  less  than  that  practiced  by  the  gov- 
ernor  when  he  gave  to  the  contestee  the  certificate  ihat  belonged  to  the 
contestant. 

In  other  words,  your  committee  believe,  that  if  the  case  was  one  of 
doubt,  as  it  is  not,  the  practice  for  so  many  years  of  the  parties  who 
made  the  law  of  1882,  and  of  the  parties  for  whom  it  was  made  in  con- 
struction thereof,  is  conclusive  upon  them  in  this  proceeding. 

And  they  are  of  opinion  that,  on  the  face  of  the  returns,  the  contest- 
ant was  elected  by  a  majority  of  12,  and  was  entitled  to  the  governor's 
certificate  of  election. 

Such  being  the  case,  the  contestant  is  now  to  be  treated  as  if  he  had 
received  the  certificate,  and  the  onus  is  cast  on  the  contestee  to  show 
that  the  returns,  if  truly  made,  would  elect  him.  (Wallace  vs.  Mc- 
Kinley,  Forty-eighth  Congress.) 

This  he  attempts  to  do  in  his  brief  submitted  to  the  committee,  by  a 
series  of  propositions  quite  as  technical  and  void  of  merit  as  is  the  con- 
tention by  which  he  seeks  to  retain  the  benefit  of  the  certificate  wrong- 
fully issued  to  him. 

In  eight  districts,  in  which  he  had  an  aggregate  vote  of  588  and  the 
contestant  an  aggregate  vote  of  1,083,  he  asks  that  the  total  vote  be 
excluded  from  the  count  for  various  reasons,  in  one  district  for  one  rea- 
son and  in  another  district  for  another.  His  proposition  will  be  found 
to  resolve  itself  into  a  demand  that  the  voters  of  these  eight  districts 
shall  be  disfranchised  for  reasons  with  which  the  voters  themselves  had 
nothing  at  all  to  do,  for  no  fault  of  theirs.  Xo  one  will  deny  that  to 
sustain  this  contention  strong  and  couvinciug  reasons  must  be  assigned. 
And  it  is  only  fair  to  say,  that  the  leading  counsel  for  contestee  in  his 
argument  before  the  committee,  admitted  the  purely  technical  charac- 
ter of  the  objections  to  the  vote  in  these  eight  precincts  and  declined 
to  press  them.  As  to  one  precinct  only  the  argument  was  pressed  by 
the  assistant  counsel  of  the  contestee. 

An  examination  of  the  reasons  urged  for  the  disfranchisement  of  the 
voters  of  the  several  precincts  named,  taking  them  in  their  order,  will 
justify  counsel  in  his  concession  as  to  their  purely  technical  character. 

The  first  precinct  complained  of  is  Ebenezer  precinct  in  Calhoun 
County. 

Here  the  contestant  received  39  votes  and  the  contestee  19.  All  are 
asked  to  be  excluded  because  it  is  alleged  that  it  does  not  appear  that 
the  commissioners  who  conducted  the  election  were  sworn. 

The  record  shows  that  on  the  poll-book  returned  to  the  county  clerk's 
oflBce  the  oath  ajipeared  at  length  and  in  the  form  prescribed  by  law, 
subscribed  by  each  and  all  the  commissioners,  but  the  jurat  is  irregular 
and  indefinite.    It  reads  as  follows : 

Subscribed  and  sworn  to  before  me  as  one  of  the  commissioners,  L.  F.  Law,  this 

day  of  November,  1H88. 

Petek  Conley. 

Both  Law  and  Conley  were  commissioners,  and  either  had  the  power 
to  swear  all  the  rest.  It  is  very  clear,  even  from  the  imperfect  record, 
that  all  took  the  oath  by  subscribing  to  it,  and  that  as  to  two  at  least 
the  certificate  is  conclusive.     Where  part  of  the  officers  are  sworn, 


SMITH    VS.    JACKSON.  21 

others  not,  the  election  is  valid.  (Fuller  v.  Davison,  2  Bart.,  126.)  Two 
things  are  to  be  noted  in  this  connection :  first,  that  sworn  or  unsworn, 
all  the  commissioners  were  de  facto  election  oflQcers,  and,  second,  that 
no  harm  resulted  to  any  one,  either  the  public  or  an  individual  voter, 
from  their  failure  to  be  regularly  sworn.  All  authorities  agree  that 
the  acts  of  de  facto  officers  are  to  be  accepted  and  treated  as  valid  so 
far  as  the  public  and  the  candidates  are  concerned.  (Paiue  on  Elec- 
tions, sec.  373.  and  cases  cited.)  It  is  a  well-settled  principle  of  law, 
and  a  very  ancient  one,  "that  the  act  of  an  officer  de  facto,  where  it  is 
for  his  own  benefit,  is  void  *  *  *  but  where  it  is  for  the  benefit  of 
strangers,  or  the  public,  who  are  presumed  to  be  ignorant  of  such  de- 
fect of  title,  it  is  good."    (Cro  Eliz,  099.) 

It  has  been  repeatedly  held  that  a  certificate  of  unsworn  officers  even, 
is  prima  facie,  and  the  burden  is  on  the  contestant  to  show  that  the 
errors  committed  effected  the  result  or  rendered  it  uDcertain.  (Taylor 
V8.  Taylor,  10  Min.,  107  ;  Whipley  vs.  McCune,  10  Cal.,  352.) 

It  is  contended,  however,  that  this  principle  does  not  aj)ply  in  this 
case  because  the  law  of  West  Virginia  provides : 

The  said  oatQ  shall  appear  properly  certified  on  one  of  the  poll-books  of  every 
election,  and  in  no  case  shall  the  vote  taken  at  any  place  of  voting  be  counted  unless 
said  oath  so  appears,  or  unless  it  be  proved  to  the  satisfaction  of  the  commissioners 
of  the  county  court,  convened  at  the  court-house,  as  hereinafter  required,  that  the 
oath  was  taken  before  said  commissioners,  canvassers,  and  clerks  entered  upon  the 
discharge  of  their  duties. 

But  the  contention  must  fail  and  the  argument  be  against  the  con- 
testeefor  the  manifest  reason,  that  unless  the  oath  had  been  taken  the 
votes  at  this  precinct  could  not  have  been  counted.  The  taking  of  the 
oath  was  to  be  made  to  appear  either  upon  the  poll-books  or  by  proof 
to  the  satisfaction  of  the  county  commissioners.  These  commissioners 
had  power,  "if  deemed  necessary,  to  require  the  attendance  of  any  of 
the  commissioners  or  canvassers,  or  other  officers  or  persons  present  at 
the  election,  to  answer  questions  under  oath  respecting  the  same,  and 
to  make  such  other  orders  as  shall  seem  proper  to  procure  correct  re- 
turns and  ascertain  the  true  result  of  the  said  election  in  their  county." 

The  commissioners  of  the  county  court  must  be  presumed  to  have 
done  all  things  within  their  power  necessary  to  be  done  in  the  perform- 
ance of  their  duty  iti  accordance  with  law.  They  can  not  be  presumed 
to  have  done  anything  unlawful.  The  votes  could  not  have  been  law- 
fully counted  unless  the  election  officers  appear  to  have  been  sworn, 
either  by  the  evidence  of  the  poll-book  or  by  other  evidence  satisfactory 
to  the  commissioners.  The  votes  were  counted,  and  if  it  be  true  that 
the  swearing  of  the  officers  is  not  proven  by  the  iioU-book,  it  must  have 
been  otherwise  proven  to  the  satisfaction  of  the  commissioners. 

No  reason,  therefore,  has  been  shown  why  your  committee  should 
disfranchise  the  voters  of  this  district. 

The  next  district  sought  to  be  disfranchised  in  the  interest  of  the  con- 
testee  is  Kentuck  precinct,  Jackson  County,  where  there  were  152  votes 
for  contestant  and  72  for  contestee. 

The  complaint  here  is  that  no  vote  was  returned  on  the  poll-books  by 
the  precinct  commissioners  nor  any  certificate  in  the  case  of  the  candi- 
dates for  Congress. 

The  law  of  West  Virginia  (section  18,  chapter  3,  Code)  requires 
that  upon  the  close  of  the  polls  there  shall  be  read  from  the  ballots, 
one  at  a  time  by  one  of  the  commissioners,  the  designations  of  the 
offices  to  be  filled  and  the  names  of  the  persons  voted  for  for  each  office. 


22  SMITH    VS.    JACKSON. 

The  ballot  shall  theu  be  handed  to  another  of  the  commissioners,  who 
if  satisfied  that  it  was  correctly  read,  shall  string'  it  on  a  thread. 

The  coiiteii(8  of  the  ballots  as  they  are  read  shall  be  entered  by  the  clerks  under 
the  snperA'ision  of  the  coniniissioners  on  tally  papers  for  the  purpose  by  suitable  marks 
made  opposite  to  or  under  the  name  of  each  person  for  any  office  to  be  filled. 

fSec.  20]  "As  soon  as  the  results  are  ascertained  the  commissioners 
or  a  majority  of  them  *  *  *  at  each  place  of  voting  shall  make  out 
and  sign  two  certificates  thereof  [according  to  a  prescribed  form]  and 
transmit  one  to  the  clerk  of  the  county  court.  They  shall  also  seal  up 
the  ballots,  and  send  them  with  one  set  of  the  poll-books  to  the  said 
clerk." 

A  reference  to  the  certificate  (Record,  pp.  341-2-3  ;  351-2)  will  show- 
that  the  certificates  were  made  and  signed  by  the  commissioners  hold- 
ing the  election,  and  returned  to  the  clerks  of  the  countj^  and  circuit 
court,  as  required  by  law,  but  that  the  names  of  contestant  and  con- 
testee  did  not  appear  in  said  certificate,  nor  the  office  for  which  they 
were  candidates  and  received  votes.  But  their  names  were  on  the 
ballots  cast  at  said  precinct  for  said  office,  and  the  ballots  were  counted 
by  the  commissioners  of  election,  and  their  names  were  written  down 
by  them  on  the  tally-sheets  opposite  or  under  the  designation  of  the 
office  for  which  they  received  votes,  and  the  number  of  votes  which 
each  received  was  designated  on  said  tally-sheets,  to  wit,  152  for  con- 
testant and  72  for  contestee,  in  the  same  manner  as  was  done  with  re- 
spect to  the  names  of  all  other  candidates  voted  for  at  said  election, 
and  the  tally-sheets  were  returned  with  the  certificates  and  the  ballots  to 
the  clerk  of  the  county  court.  The  aggregate  votes  appearing  thereby 
to  have  been  cast  for  contestant  and  contestee  were  one  less  than  the 
highest  number  appearing  to  have  been  cast  for  any  other  two  op)>os- 
ing  candidates.  When  these  papers  reached  the  commissioners  of  the 
county  court,  counsel  for  contestee  demanded  a  recount  of  the  votes 
for  Jackson  County,  as  to  Representative  in  Congress,  as  he  had  the  law- 
ful right  to  do.  Under  this  demand  the  commissioners  of  the  county 
court  recounted  all  the  ballots  cast  for  Representative  in  Congress  in 
that  county,  and  upon  that  recount  the  number  of  votes  appearing  to 
have  been  cast  for  the  contestant  and  contestee  were  the  same  as  ap- 
peared upon  said  tally-sheets,  and  including  these  votes,  the  result  in 
the  county  was,  for  contestant,  2,272  votes,  and  'for  contestee,  1,886 
votes.    And  this  result  was  certified  to  the  governor. 

The  only  irregularity  here  seems  to  have  been  a  clerical  error,  in  the 
failure  of  the  election  commissioners  to  insert  in  the  certificate  the  re- 
sult of  the  election  at  that  precinct  as  to  Representative  in  Congress. 
They  did  ascertain  the  result  and  wrote  it  correctly  on  the  tally-sheets, 
and  when  the  county  commissioners  counted  the  ballots  at  the  demand  of 
contestee's  counsel,  they  obtained  the  same  result,  and  the  ballots  were 
there  and  inspected  by  the  commissioners,  and  presumably  by  the  con- 
tester's  attorney  who  made  the  demand  for  recount. 

But  this  failure  of  the  commissioners  of  election  to  make  return  of 
the  votes  at  this  precinct  could  not  have  the  efl'ect  to  disfranchise  the 
persons  who  voted  there,  and  the  law  of  West  Virginia  especially  pro- 
vides for  such  a  case.  In  declaring  the  powers  and  duties  of  the  county 
commissioners  in  ascertaining  and  declaring  the  result  of  the  election 
in  their  respective  counties,  the  following  language  is  used : 

They  may,  if  deemed  necessary,  require  the  attendance  of  any  of  the  commissioners 
or  canvassers  or  other  officers  or  persons  present  at  the  election,  to  answer  questions 
under  oath  respecting  the  same,  and  luay  make  such  other  orders  as  shall  seem  proper 
to  procure  correct  returns  and  ascertain  the  true  result  of  the  said  election  in  their 
county. 


SMITH    VS.    JACKSON.  23 

The  pref«nniptioTi  as  well  as  tbe  proof  is,  that  the  coiintr  commis- 
sioners ascertained,  by  the  exercise  of  their  powers  of  examination,  the 
true  result  of  the  election,  i.ud  certified  accordingly.  There  is  no  pre- 
tense that  they  did  not. 

Counsel  forcontestee  say  that  he,  the  contestee,  made  no  demand  for  a 
recount  of  the  vote  at  this  precinct,  and  argue  that  the  fact  of  such  de- 
mand should  appear  of  record.  There  is  no  hiw  requiring  the  demand  to 
be  made  matter  of  record.  There  is  no  record  of  demand  made  in  any 
precinct,  though  contestee  admits  having  made  such  demand  in  some. 
There  is  afiirmative  proof  (Record,  p.  724)  that  demand  was  made  for  a 
recount  in  this  precinct  by  contestee's  attorney,  and  neither  the  attorney 
nor  the  contestant  was  called  to  rebut  this  evidence. 

The  matter  does  not  seem  material,  nor  to  merit  discussion,  since 
there  is  no  pretense  that  the  commissioners  in  the  exercise  of  their 
legitimate  fuuctions  did  not  ascertain  the  true  vote  in  this  precinct;  no 
pretense  that  it  was  not  truly  declared ;  no  pretense  that  any  voter 
suffered  anything  by  the  alleged  irregularity;  in  fact,  nothing  to  take 
this  case  out  of  the  ordiijarj'  rule  of  law,  that  statutes  directing  the 
mode  of  proceeding  of  public  officers  are  directory  merely,  unless  there 
is  something  in  the  statute  itself  which  plainly  shows  a  different 
intent. 

Contestee  further  claims  that  the  returns  from  Pine  Log  precinct, 
Jackson  County,  should  be  excluded.  His  charge  is  that  ''there  was 
such  misconduct  and  fraudulent  acts  upon  the  part  of  those  who  con- 
ducted the  election  as  to  render  such  poll  and  the  votes  cast  respect- 
ively for  contestant  and  for  contestee  null  and  void;  that  is,  139  votes 
for  contestant  and  92  votes  tor  contestee." 

From  the  evidence  the  facts  appear  to  be  as  follows :  Thomas  Rorden, 
John  McKown,  and  W.  T.  Dernberger  were  the  commissioners  conduct- 
ing the  election  at  this  precinct.  C.  C.  Nesselrood,  a  witness  for  con- 
testee (p.  317-1«)  testifies,  that  the  votes  were  counted  during  the  night 
following  the  day  ot  the  election,  and  that  he  remained  there  while  the 
vote  was  being  counted  and  until  it  was  completed  ;  that  after  midnight 
witness  went  to  sleej)  and  awoke  after  sleeping  about  two  hours;  that 
when  he  awoke  Dernberger,  one  of  the  commissioners,  was  asleep  on  a 
bench,  and  MeKown,  another  of  them,  was  smoking  in  the  back  pait  of 
the  house;  and  the  other  commissioner,  Rorden,  was  being  assisted  in 
the  counting  by  W.  E.  Dernberger,  son  of  the  commissioner,  and  W. 
H.  Rorden  and  Asberry  Davis  were  stringing  the  votes;  that  Dern- 
berger, the  commissioner,  and  his  son  were  both  Democrats,  the  former 
being  a  member  of  the  Democratic  county  committee;  that  Davis  is  a 
Democrat,  and  took  the  place  of  McKown  in  the  counting.  By  infer- 
ence, therefore,  McKown  is  a  Democrat,  and  Rorden  was  the  Republi- 
can commissioner.  This  is  the  only  witness  who  testifies  as  to  the  con- 
duct of  the  election  at  that  precinct. 

The  evidence  does  not  show  that  the  ballot-box  was  in  the  custody 
of  any  one  of  the  commissioners  so  as  to  require  it  to  be  sealeil.  Even  if 
it  was  out  of  the  custody  of  Dernberger,  from  the  fact  that  he  was  asleep, 
it  was  not  out  of  that  of  McKown  who  was  present  in  the  room,  and  the 
counting  proceeded  under  his  observation,  and  his  place  was  tilled  in 
the  operation  of  counting  by  a  Democrat.  There  is  not  the  slightest 
evidence  tending  to  show  that  there  was  any  tampering  with  the  ballot 
or  returns,  or  any  fraud  of  any  character.  All  that  was  done  was  in 
the  presence  of  at  least  two  of  the  commissioners  who  were  awake. 

It  appears  from  the  evidence  of  Lemley  (pp.  724-'o)  that  the  return 
from  this  precinct  did  not  show  any  votes  for  contestee,  but  139  votes 


24  SMITH   VS.    JACKSON. 

for  contestant,  a  mere  clerical  error  in  failing:  to  write  into  the  return 
coiitestee's  vote,  but,  under  the  recount  which  was  demanded  by  con- 
testee,  the  votes  for  him  at  this  precinct  were  counted  by  the  commis- 
sioners of  the  county  court,  and  the  number  of  them,  93,  included  In 
their  return  to  the  governor. 

It  is  to  be  observed  that  no  allegation  of  any  specific  act  of  fraud  is 
alleged.  Your  committee  are  asked  to  presume  that  fraud  was  com- 
mitted because  it  might  have  been  committed,  and  this  in  the  absence 
of  any  pretense  that  a  single  legal  vote  was  excluded  from,  or  a  single 
illegal  vote  was  included  in,  the  result  announced. 

Your  committee  do  not  know  of  any  principle  of  law  that  would 
justify  them  in  so  finding.  They  understand  the  law  to  be  as  declared 
iu  Mann  v.  Cassidy  (1  Brewster  (Penna.),  60). 

An  allegation  of  fraud  committed  by  election  officers  is  immaterial  unless  it  be  also 
stated  that  the  result  has  been  affected. 

The  votes  in  Pine  Log  precinct  should  be  counted  as  returned. 

The  next  precinct  complained  of  is  Boyer  precinct,  Putnam  County. 

Contestee  charges  that  the  voting  place  in  4his  precinct,  established 
by  order  of  the  ccunty  court,  was  McGill's  post-ofiice,  but  that  the 
election  was  held  at  Isaac's  Branch  school-house,  from  one-half  to  three- 
quarters  of  a  mile  distant  from  the  post-office.  (Record,  p.  33.)  The 
evidence  tends  to  prove  the  above  statement,  but  it  is  not  claimed,  nor 
does  the  evidence  tend  to  show  that  any  person  was  deceived  or  pre- 
vented from  voting  thereby.  Two  witnesses  only  are  examined  by  con- 
testee in  relation  to  this  precinct,  and  one  of  them  (Fowler,  pp.  408-9) 
says  that  it  was  his  understanding  from  the  time  he  knew  of  the  elec- 
tion, that  it  was  to  be  held  at  the  Isaac's  Branch  school-house,  and  that 
every  voter  in  the  precinct  voted  at  said  voting  place,  at  said  election, 
except  one,  and  he  was  too  sick  to  go  to  the  polls.  The  other  witness 
(Dunlap,  p.  410),  corroborates  Fowler  generally,  and  in  addition,  says 
that  the  school  election  in  1887  was  held  at  the  same  place.  So  that 
contestee,  by  his  own  witnesses,  proves  that  no  voter  was  wronged  out 
of  his  vote,  and  that  he  was  not  injured  by  this  change  of  voting  ])laces. 

This  case  calls  for  the  application  of  the  rule  which  protects  the 
voter  against  disfranchisement  from  the  default  of  a  public  officer  when 
such  default  has  resulted  in  no  injury  to  any  one.  (Farrington  t.  Tur- 
ner, 53  Mich.,  27;  People  t?.  Simonson,  5  N.  Y.,  22;  Steele  r.  Calhoun, 
61  Miss.,  556.) 

The  next  precinct  asked  to  be  excluded  presents  facts  very  similar  to 
the  last,  and  is  governed  by  the  same  principles. 

Thomas  School-House  precinct,  Putnam  County:  Contestee  contends 
that  the  legal  voting  place  for  this  precinct  was  the  residence  of  Josiah 
C.  Thomas,  and  that  the  election  was  held  at  the  Thomas  School-House, 
about  three-quarters  of  a  mile  distant  from  said  residence. 

Josiah  C.  Thomas  is  the  only  witness  examined  in  relation  to  this  ob' 
jection  and  he  was  introduced  by  contestee  ( Record,  pp.  410-11).  He  says 
that  the  voting  place  was  established  at  his  house  in  1849  or  1850  by  an 
act  of  the  legislature  of  Virginia.  This  is  not  the  way  to  prove  an  act  of 
the  legislature.  It  probably  amounts  however  to  proof  that  this  was  the 
voting  place  of  the  precinct  bj'  common  consent,  for  he  says  they  con- 
tinued to  vote  there  down  to  and  including  the  Presidential  election  ot 
1880,  that  soon  thereafter  he  spoke  to  some  i)arties  to  have  it  changed, 
that  word  afterwards  came  that  it  had  been  changed  to  the  school- 
house,  that  this  was  generally  understood,  and  that  every  election  since 
1880,  including  the  one  in  question,  has  been  held  at  the  school-house, 


SMITH    VS.    JACKSON.  25 

aud  that  that  has  been  the  voting  place  of  the  precinct  since  that  time 
according  to  common  understanding. 

Under  this  evidence,  one  of  these  places  seems  to  have  been  estab- 
lished by  custom,  or  common  consent.  At  the  time  of  the  election  the 
school-house  was  the  legal  voting  place,  and  the  subsequent  order  of 
the  county  court  fixing  it  as  the  legal  voting  place  was  unnecessary,  as 
it  had  already  before  that  time  recognized  it  as  such  by  counting  and 
considering  the  votes  at  former  elections  there  cast.  There  is  no  pos- 
sible pretext  for  assailing  this  precinct. 

The  contestant,  in  his  notice  of  contest,  specified  three  precincts 
where  the  election  was  not  held  at  places  designated  by  law,  viz.,  Saudy- 
ville,  Jackson  County;  Reedy  nnd  Curtis,  in  lloane  County,  at  each 
of  which  the  contestee  received  majorities  greater  in  the  aggregate  than 
the  majority  received  by  contestant  at  the  precincts  challenged,  for  like 
reasons,  by  the  contestee  in  his  reply.  The  facts  are  about  the  same  in 
the  cases  on  both  sides.  Ko  voter  appears  to  have  been  deprived  of  an 
opportunity  of  voting  by  reason  of  the  fact  that  the  election  was  not 
held  at  the  place  designated  by  law. 

The  contestant  did  not  press  these  objections  made  in  his  notice  of 
contest.  If  he  had  they  must  hav^e  been  overruled  upon  the  principle 
already  announced. 

In  Walton  precinct,  Roane  Countj',  the  contestee  claims  that  the 
ballot-box  was  in  the  custody  of  one  of  the  commissioners  of  election 
alone,  in  violf'tion  of  law,  and  that  the  vote  at  this  precinct,  where  con- 
testant had  L31  plurality,  should  be  rejected  for  this  reason. 

The  section  of  the  law  relating  to  this  subject  is  as  follows  (Code, 
ch.  3,  sec.  14) : 

The  ballot-box  shall  have  an  aperture  in  the  lid  or  top  thereof  to  receive  the  bal- 
lots of  voters.  While  the  polls  ai'C  open  it  shall  be  kept  where  it  may  be  seen  by  the 
voters,  and  after  the  polls  are  closed,  and  nntil  the  votes  are  connted  and  the  certifi- 
cates of  the  result  ,are  signed,  shall  remain  in  the  immediate  custody  of  the  com- 
missioner, or  any  one  of  them,  with  the  consent  of  the  others.  But  it  shall  not  be 
opened  unless  two  of  them  at  least  be  present,  and  if  left  at  any  time  in  the  custody 
of  one  of  the  number,  shall  be  carefully  sealed  so  that  it  can  not  be  opened  or  any 
ballot  taken  therefrom  or  entered  therein  without  breaking  the  seal,  and  the  others 
shall  write  their  names  across  the  place  or  places  where  it  is  sealed. 

The  facts  are  as  follows : 

The  ballot-box  was  a  firm  wooden  box  with  a  sliding  lid  with  a  hole 
through  the  top  to  receive  the  ballots.  There  was  a  lock  on  the  box 
but  no  key  to  it ;  the  lid  would  slide  easily ;  the  lid  was  fastened  with 
a  nail  which  could  be  drawn  out  with  the  fingers.  The  commissioners 
of  election  were  N.  K.  Walker,  H.  O.  Rock,  and  J.  C.  Garvin ;  the  first 
two  Democrats  and  the  last  a  Republican  ;  on  the  day  of  the  election 
the  commissioners  went  to  dinner  at  a  hotel  near  by,  and  Garvin  had 
the  box ;  there  was  a  seal  over  the  aperture  in  the  lid  (p.  469) ;  Garvin 
finished  dinner  first  and  took  the  box  under  his  arm  and  went  to  a 
store  about  thirty  or  forty  steps  from  the  hotel,  and  in  not  more  than 
five  minutes  Walker  followed  him  there ;  contestee's  witness  says  if  box 
was  sealed  ballots  could  not  have  been  put  in  or  abstracted  without 
the  same  being  detected,  but  could  if  it  was  not  sealed.  They  com- 
menced counting  ballots  in  the  evening  of  the  6th  and  continued  until 
3  a.  m.,  of  the  7th,  then  took  a  recess  until  after  breakfast  and  finished 
counting  at  10  p.  m.  of  the  7th.  The  counting  was  done  at  Mr.  IJiley's 
hotel  upstairs;  during  the  count  on  the  7th  they  halted  for  a  rest  and 
Walker  and  Rock  went  out  and  left  Garvin  and  the  two  clerks  with 
the  ballot-box,  which  was  then  sealed.  Walker  returned  in  a  few  min- 
utes and  found  only  Garvin  and  Chris.  Summers,  both  Republicans,  in 


2G  SMITH    vs.    JACKSON. 

the  room,  stnndiup;,  one  on  eitlier  pidc  of  tb«^  table  ou  wh'ch  the  ballot- 
oox  wns.'  Walker  testifies  for  contesteo  ihat  lie  saw  nothing  in  the 
conduct  of  Garvin  or  Summers  which  led  him  to  sui)jiose  that  there 
had  been  any  tami»ering  with  the  ballot-box,  and  that  there  was  noth- 
ing to  indicate  that  there  had  been  ;  that  he  Icnew  Garvin  well,  and  did 
not  believe  he  did  or  would  tamper  with  the  ballot-box,  or  permit  it  to 
be  done  ;  that  the  result  of  the  election  was  about  as  usual  at  that  pre- 
cinct, and  nothing  in  it  to  indicate  that  there  was  any  tampering, 
and  that  the  number  of  ballots  tallied  with  the  number  of  names  ou 
the  i)oll  books.  There  is  a  total  absence  of  evidence  tending  to  show 
any  fraud  or  improper  practices  on  the  part  of  any  one  in  conducting 
the  election. 

The  evidence  fails  to  show  that  the  box  was  "left  at  any  time  in  the 
custody  of  one  of  the  number"  in  contemplation  of  the  law.  While 
they  were  at  dinner  it  was  as  much  in  the  custody  of  the  one  who  did 
not  have  manual  possession  as  it  was  in  his  who  did.  Besides,  at  that 
time  it  was  sealed.  Ou  the  other  occasion  it  was  not  lelt  in  Garvin's 
custody  in  contemplation  of  law  or  in  tact.  The  others  stepped  out 
only  momentarily.  The  sealing  was  to  be  done  only  «vhen  the  two 
turned  it  over  to  the  third,  thereby'  expressly  charging  him  with  the 
custody. 

Besides,  if  there  was  any  violation  of  law  it  was  only  technical,  and 
did  not  tend  to  the  injury  or  i)rejudice  of  the  contestee,  and  can  not 
deprive  the  voters  of  the  right  of  having  their  votes  counted  as  cast. 

The  same  rule  of  law  applied  with  respect  to  Walton  precinct  applies 
here.  There  was  no  evidence  of  b.ul  faitti  or  injurious  results,  nor  was 
the  result  of  the  election  rendered  unreliable  by  reason  of  anything 
charged  against  the  election  officers. 

The  innocent  voters  of  this  precinct  can  not  be  disfranchished  upon 
a  mere  presumption  of  fraud,  even  if  the  circumstances  would  justify 
it,  as  they  do  not. 

The  objection  made  to  the  vote  of  the  Murphy's  Mill  precinct  is  of 
such  a  frivolous  character  as  to  merit  but  little  iliscuvssion.  Jt  is,  that 
the  oath  of  the  precinct  commissioner  <loes  not  ap])ear  properly  certi- 
fied on  the  poll  book.  It  was  not  properly  certified  because  Marion  J. 
Bickle,  a  justice  of  the  peace  who  administered  it,  signed  the  jurat 
"  Marion  J.  Bickle,  in  ard  for  Clay  distiict,  W'ood  county,  W.  Va.," 
omitting  the  words  ''justice  of  the  peace"  alter  his  name. 

He  was  in  i)oint  of  fact,  a  justice  of  the  peace  as  the  evidence  shows. 
The  less  comment  made  on  this  objection  the  better,  one  would  thiuk, 
for  the  contestee. 

The  next  objection  is  like  unto  the  last,  and  relates  to  Wadesvillo 
])reciuct.  Wood  Count> .  The  objection  here  again  relates  to  an  alleged 
irregularity  in  the  jurat.  The  oath  was  adminstered  by  T.  J.  Sands, 
one  of  the  commissioners  of  election,  but  he  omitted  to  sign  with  his 
official  title. 

That  the  oath  was  administered  by  him,  that  he  was  a  commissioner 
and  by  law  authorized  to  administer  it,  aie  facts  not  capable  of  being 
called  in  question. 

The  matter  does  not  seem  to  merit  discussion. 

Bearing  in  mind  that  the  contestant  was  in  the  first  instance  entitled 
to  the  governor's  certificate  and  had  a  maiority  of  twelve,  it  appears 
froui  our  examination  of  the  case  thus  far,  that  he  still  retains  that  ma- 
jority, and  we  address  ourselves  to  the  questiou  as  to  whether  it  has 
been  overcome  by  proof  as  to  the  illegal  votes  claimed  to  have  been  cast 
on  both  sides. 


SMITH   VS.    JACKSON.  27 

To  qualify  one  to  vote  iu  West  Virginia  he  must  be  a  male  citizen  of 
the  United  States,  twenty-one  years  of  age,  must  have  resided  in  the 
State  for  one  year  next  preceding  the  election,  iu  the  county  sixty 
days,  and  must  be  a  bona  tide  resident  of  the  election  district  in  which 
he  claims  the  right  to  vote.  Paupers,  convicts,  and  persons  of  unsound 
mind  are  not  voters. 

By  the  record  and  briefs  filed  in  this  contest,  a  large  number  of 
votes  are  attacked  by  both  parties.  In  considering  these  votes  so  at- 
tacked the  committee  deem  it  proper  to  state  generally  the  rules  by 
which  they  have  been  gov^erned  in  determining  the  question  of  legality 
or  illegality,  and  for  whom  the  votes  were  cast. 

First.  A  vote  accepted  by  the  commissioners  holding  the  election  is 
prima  facie  legal.  Before  it  can  be  thrown  out  for  illegality  it  must  be 
satisfactorily  shown  by  the  evidence  to  have  been  cast  by  one  not  le- 
gally qnalifled  to  vote — that  is  to  say,  the  presumption  of  legality  must 
be  overcome  by  a  clear  preponderance  of  competent  evidence. 

By  competent  evidence  we  mean  such  evidence  as  would  be  admitted 
on  the  trial  of  the  issue  before  a  judicial  tribunal,  except  where  a  re- 
laxation of  the  rule  is  made  necessary  by  the  nature  of  the  issue. 

No  provision  is  made  by  the  statutes  of  West  Virginia  to  ascertain 
what  particular  ballot  any  voter  has  deposited  after  it  has  been  once 
placed  in  the  ballot-box.  Therefore  in  this  case  it  becomes  necessary 
to  ascertain  for  which  candidate  a  vote  was  given  by  other  meaLS  than 
the  ticket  itself. 

It  seems  to  have  been  taken  for  granted  by  both  parties  that  the 
voters  themselves  could  not  be  compelled  to  disclose  how  they  voted. 
It  may  be  remarked  in  this  connection  that  one  who  would  knowingly 
cast  an  illegal  vote  ought  not  to  be  regarded  as  the  most  reliable  wit- 
ness. On  the  other  hand,  when  he  has  been  honestly  mistaken,  we  can 
see  no  reason  why  such  voter  ought  not  to  be  trusted  as  a  witness. 

In  order,  then,  to  prevent  illegal  voting  with  impunity,  it  becomes 
necessary  to  determine  what  kind  of  testimony  shall  be  received  in  as- 
certaining which  candidate  got  the  benefit  of  the  illegal  vote.  The 
committee  have  followed  the  rule  which  appears  to  them  to  be  the 
most  reasonable,  as  well  as  the  best  sustained  by  authority. 

In  the  absence  of  direct  proof,  evidence  showing  to  what  political 
party  the  voter  belonged,  whose  election  he  advocated,  whose  friends 
maintained  his  right  to  vote,  and  kindred  testimony,  has  been  held  ad- 
missible. Of  course  what  the  voter  said  at  the  time  of  voting  is  ad- 
missible as  a  part  of  the  res  gesta. 

But  what  a  voter  said  after  the  day  of  the  election,  either  as  to  his 
qualifications,  or  how  he  voted,  or  whether  he  voted,  the  committee 
hold  to  be  inadmissible  in  the  absence  of  other  testimony  on  the  point. 
If  such  testimony  can  be  admitted  at  all,  which  we  do  not  concede,  it 
certainly  ought  not  to  be  received  when  the  statement  of  the  voter  is 
made  after  the  legality  of  his  vote  has  been  called  in  question.  To 
admit  this  kind  of  testimony  is  to  place  it  in  the  power  of  one  not  en- 
titled to  vote  to  have  his  illegal  vote  counted  twice  against  the  party 
he  desires  to  defeat,  without  subjecting  himself  to  cross-examination, 
and  without  even  the  formality  of  testifying  under  oath. 

Again,  one  legally  qualified  may,  by  statements  after  he  has  voted, 
make  himself  out  to  be  disqualifiexl  without  incurring  any  penalty,  and 
in  that  way  have  his  legal  vote  given  to  one  party  counted  as  illegal 
against  another  party.  One  who  has  not  voted  at  all  may  in  the  same 
way  be  proved  to  have  voted.  In  a  close  contest,  with  party  feeling 
running  high — perhaps  party  control  involved — the  admission  of  this 


28  SMITH   VS.   JACKSON. 

kind  of  testimony  wonltl  be  doubly  dangerous.  It  has  nothing  to  coui- 
mend  it  except  a  class  of  decisions  whose  authority  has  been  weakened, 
if  not  destroyed,  by  later  and  better  considered  adjudications.  Tlic  , 
committee  reject  all  such  testimony  as  being  mere  hearsay  of  the  most 
dangerous  kind  when  standing  alone.  When  the  only  evidence  of  how 
a  man  voted,  or  whether  he  was  a  legal  voter,  is  the  unsworn  statement 
of  the  voter  after  the  election,  we  have  let  the  vote  stand. 

In  regard  to  what  constitutes  a  i)erson  of  unsound  mind  we  have 
adopted  the  rules  substantially  as  laid  down  by  American  courts  and 
text-book  writers  and  hold  that  a  person  having  suflficient  intelligence 
to  make  a  valid  will,  or  to  bind  himself  by  ordinary  contracts,  or  to  be 
criminally  responsible  for  his  acts,  is  a  person  of  sound  mind.  One 
whose  will  would  be  held  invalid,  for  no  other  reason  than  mental  in- 
capacity, is  a  person  of  unsound  mind. 

In  the  record  we  find  the  oft-recurring  question,  "  Was  the  voter  in 
your  opinion  a  man  of  unsound  mind,"  put  to  a  non-professional  wit- 
ness without  any  attempt  to  define  what  was  meant  by  unsoundness  of 
mind.  To  the  answer  to  such  question,  unaccompanied  by  any  explana- 
tion of  what  the  witness  understood  by  the  term,  we  attach  very  little 
weight. 

Tbe  condition  of  the  voter,  his  acts  and  speech,  how  he  is  regarded 
by  those  who  know  hira,  as  to  his  competency  to  contract,  judicial  de- 
terminations, and  the  like  evidence  has  been  given  due  weight.  The 
term  idiot  is  so  well  understood  that  the  statement  of  a  witness  that  a 
person  is  an  idiot  is  given  more  weight,  as  being  the  statement  of  a  fact 
within  the  knowledge  of  the  witness,  and  not  a  mere  opinion. 

With  these  rules  in  view  the  determination  of  the  legality  of  a  vote 
only  requires  a  fair  and  intelligent  consideration  of  the  evidence.  Upon 
the  question  of  what  constitutes  a  pauper,  there  is  some  disagreement 
in  the  authorities,  but  we  think  the  following  may  be  taken  as  a  fair  defi- 
nition :  A  pau])er  is  one  who  is  continuously  supported  in  whole  or  in 
])art  out  of  funds  provided  by  the  public  authorities  for  that  purpose. 
One  who  has  been  a  public  charge,  and  afterwards  becomes  self-sup- 
porting for  a  suflficient  time  before  the  election  to  show  that  his  ability 
to  support  himself  is.  not  a  mere  temporary  condition,  may  legally  vote. 

One  who,  under  temporary  misfortune  or  sickness,  receives  public 
aid,  but  is  ordinarily  self-supporting,  is  not  a  pauper. 

The  law  which  ^determines  the  question  of  residence  is  so  well  settled 
that  it  does  not  need  a  restatement  by  the  committee ;  the  diflScuity  is 
in  the  application  of  the  law  to  the  evidence. 

Absence  from  the  place  claimed  as  a  residence,  for  temporary  pur- 
poses, does  not  work  abandonment,  but  in  this  case  some  of  the  wit- 
nesses and  some  of  the  commissioners  of  election  seem  to  have  had  the 
view  that  a  voting  residence  might  be  retained  by  the  simple  statement 
of  intention  to  retain  a  certain  place  as  a  voting  residence,  although  an 
actual  residence  had  been  taken  up  elsewhere,  with  no  fixed  intention 
of  ever  again  actually  living  at  the  place  where  the  right  to  vote  is 
claimed.  Others  seem  to  think  that  they  can  establish  a  new  residence 
by  intention  before  actually  and  in  fact  moving  to  the  new  place. 

We  do  not  concur  in  these  views.  It  takes  both  act  and  intention  to 
establish  a  residence,  and  an  intention  to  retain  a  residence  which  has 
been  left  must  be  an  intention  actually  to  return  to  it  and  reside  in  it. 

Some  vot^s  in  this  record  are  questioned  on  account  of  disputed  or 
doubtful  boundary  lines.  The  committee  have  not  thought  it  their 
duty  to  go  into  an  investigation  of  disputed  boundaries,  but  have 
counted  all  votes  as  legal  when  the  voters  were  otherwise  qualified  and 


SMITH   VS.    JACKSON. 


29 


voted  in  good  faith  in  the  district  where  they  believed  that  they  had 
their  residence,  and  where  they  liadbeen  in  the  liabit  of  voting. 

Applying  the  foregoing  rules  we  now  propose  to  consider  the  separate 
votes  without  attempting  to  discuss  each  vote  at  any  length. 

CoBtestee  in  liis  brief  substantially  concedes  that  the  following  votes 
cast  for  hini  were  illegal  and  ought  to  be  deducted  from  his  vote. 


Ephriam  Hensley,  non-resident. 
W.  J.  Giluiore,  non-resident. 
C.  D.  StaliKilcer,  minor. 
Charles  Reynolds,  non-resident. 
John  C  Deaton,  panper. 
James  Powell,  unsound  mind. 
Henry  Reynolds,  nou-resident. 
Grant  Griffith,  minor. 
Napoleon  Adkins,  Wayne  County. 
W   S.  Napier,  Wayue  County. 


W.  W.  Bromfield,  Wayne  County. 
Aldersou  Watts,  jr.,  Wayne  County. 
William  Noe,  Wayne  County. 
C.  O.  Bellomy,  Wayne  County. 
Elias  Browning,  W^ayue  County. 
W.  Y.  Woodring,  nonresident. 
Noble  Hunter,  convict. 
John  Cochran,  panper. 
Frederick  Schwall,  pauper. 
Michael  Hobart,  non-resident. 


making  twenty  conceded  illegal  votes,  one  of  which,  Frederick  Schwall, 
we  deduct,  as  the  concession  grows  out  of  testimony  which  the  com- 
mittee do  not  consider  comi)etent. 

Two  or  three  of  these  votes  contestee  insists  should  not  be  charged 
against  him,  because  not  named  in  contestant's  notice  of  contest. 

One  of  them,  Michael  Hobart,  was  challenged  by  contestee  in  his  re- 
ply. The  vote  was  illegal  and  cast  for  contestee.  The  committee 
think  that  a  vote  challenged  in  the  notice  by  either  party  is  a  proper 
subject  of  investigation. 

Two  otherswerenotnamedin  either  notice.  The  pleadings  in  this  case 
are  more  specific  than  the  practice  before  the  comoiittee  requires.  As  a 
general  rule  parties  ought  to  be  bound  by  their  pleadings,  but  where 
neither  party  has  been  taken  by  surprise,  and  both  have  entered  into 
the  investigation,  the  rule  should  be  relaxed  in  the  interest  ofjustice. 

The  evidence  in  regard  to  these  voters  was  taken  a  month  before  con- 
testee commenced  examining  his  witnesses,  the  witnesses  impeaching 
the  votes  were  cross-examined  on  this  branch  of  their  testimony,  and 
the  contestee  should  be  held  to  have  waived  his  objections. 

In  a  final  summary  of  his  claims  contestant  has  conceded  that  he  has 
failed  to  establish  his  charges  with  reference  to  a  number  of  named 
voters,  and  that  the  evidence  in  regard  to  others  places  them  in  the 
doubtful  list.  As  to  all  such  we  have  not  felt  it  our  duty  to  examiue 
the  evidence,  as  we  take  the  admission  to  amount  to  a  waiver.  Al- 
though as  to  some  of  them  it  may  be  said  it  takes  all  the  benefit  of 
presumptions  to  hold  them  valid. 

Of  these  claimed  to  be  fully  established  as  having  been  illegally  cast 
for  contestee,  the  committee  hold  that  the  following  should  be  held  to 
have  been  illegally  voted  for  contestee : 


W.  R.  Snrratt,  non-resident. 
Wm.  Gibson,  minor. 
John  Starcher,  minor. 
.Jacob  L.  Starcher,  non-resident. 
John  Carney,  unsound  mind. 
O.  J.  Simmons,  non-resident. 
Oliver  Burns,  non-resident. 
Reese  Stiatton,  unsound  mind. 
W,  A.  Palmer,  non- resident. 
E.  J.  Long,  non-resident. 
Dr.  W.  S.  Jieese,  non-resident. 
J.  D.  Summers,  non-resident. 
N.  B.  Armstrong,  non-resident. 
John  Ball,  unsound  mind. 


Abram  Jones,  pauper. 
Thomas  Stinson,  non-resident. 
James  Dillen,  non-resident. 
Walter  Dillen,  non-resident. 
Ali  Artrip,  minor. 
John  Cox,  non-resident. 
A.  Kaminsky,  non-resident. 
Lazarus^Vainer,  non-resident. 
George  Dean,  minor. 
Henry  Tearing,  non-resident. 
Joseph  Starling,  non-resident. 
E.  D.  Lewis,  minor. 
James  Bolyard,  minor. 


Twenty-seven  in  all— or  forty-seven  illegal  ballots  voted  for  contestee. 


30  SMITH   VS.   JACKSON. 

W.  H.  Surratt  (Record,  pp.  58-62,  269-280):  This  voter  seems  to  be 
one  of  tbose  whose  residence  at  the  place  of  voting  was  one  of  mere  in- 
tention. His  home  and  business  were  elsewhere  at  the  time  of  voting 
and  at  the  time  of  taking  testimony.  His  intention  seemed  to  be  to  re- 
tain a  voting  residence  at  his  former  home,  without  any  fixed  intention 
of  ever  resuming  it  as  an  actual  residence. 

Wm.  Gibson,  John  Starcher,  minors  (Record,  pp.  63-66-7,  70-1,  296, 
302,  307):  The  most  trustworthy  testimony  in  this  case,  fixed  by  writ 
ten  documents,  shows  that  these  voters  were  minors. 

Jacob  L.  Starcher  (Record,  pp.  87,  88,  89, 350)  moved  from  West  Vir- 
ginia to  the  West  in  1880  and  back  in  1888;  claimed  that  he  had  not 
lost  his  residence;  but  in  Jauuarj',  i8s9,  he  made  oath  that  his  residence 
was  in  Minnesota  on  April  1,  18S8,  and  by  so  doing  secured  a  release  of 
taxes.  He  can  not  be  heard  to  say  that  he  had  retained  a  residence  in 
West  Virginia  against  the  fact  of  two  years'  actual  residence  with  his 
family  in  another  State  and  his  declaration  on  oath  designed  to  affect 
his  property  rights. 

John  Carney  (Record,  pp.  83, 88, 89,  91,  327,  332, 330):  The  preponder- 
ance of  evidence  shows  this  man  to  be  entirely  irresponsible  for  his 
acts.  On  application  of  his  brother  a  committee  or  conservator  was 
appointed  for  him.  It  is  said  the  clerk  who  made  the  ai)pointment 
had  no  legal  authority  for  his  act.  Be  that  as  it  may,  it  shows  the  esti- 
mate of  his  family  and  those  who  knew  him  best. 

O.  J.  Simmons,  nonresident  '^Record,  pp.  83,  87,  333):  Left  West  Vir- 
ginia and  moved  to  Ohio  a  year  or  more  before  the  election  and  voted 
there.  Claimed  that  his  vote  in  Ohio  was  illegal,  as  he  intended  to  re- 
tain a  residence  in  West  Virginia.  His  act  was  inconsistent  with  such 
intention. 

Oliver  Burnes :  Was  a  resident  of  Ohio  at  the  time  of  the  election, 
having  permanently  moved  from  West  Virginia.  This  does  not  seem 
to  be  controverted,  but  it  is  claimed  that  inasmuch  as  his  name  does 
not  appear  in  the  notice  of  contest  the  vote  can  not  be  considered.  We 
have  previously  referred  in  this  rejwrt  to  this  class  of  votes,  and  this 
one  lalls  fully  within  the  rule  announced. 

Reese  Strattou:  This  voter  was  not  far  removed  from  idiocy. 

W.  A.  Palmer,  non-resident  (Record,  pp.  97-98,  305-300) :  Became  of 
age  in  May,  1888;  lived  with  his  father  in  Ohio,  and  moved  with  the 
family  to  West  Virginia  in  March,  1888.  His  father  rented  a  farm  in 
West  Virginia  the  previous  fall  and  seeded  it,  but  did  not  move  to  it 
until  the  following  spring.  The  son  helped  the  father  do  the  seeding, 
then  returned  to  Ohio,  and  went  to  school  during  the  winter.  There  is 
no  possible  question  about  the  illegality  of  this  vote. 

E.  J.  Long,  non-resident :  Clearly  not  a  resident  of  West  Virginia  long 
enough  to  obtain  a  voting  residence.  Objected  to  on  the  same  ground 
as  the  vote  of  Oliver  Burns,  already  discussed. 

Dr.  W.  S.  Reese,  non-resident:  Moved  to  Ohio  before  the  election 
with  his  family.  His  claimed  intention  to  return  to  West  Virginia  was 
conditional.  He  not  oidy  did  not  carry  out  his  claimed  intention,  which 
is  a  circumstance  against  him,  but  a  few  days  after  election  abandoned 
all  intention  to  return,  and  acknowledged  himself  a  permanent  resident 
of  Ohio. 

Dr.  J.  D.  Summers  (Record,  pp.  146,  149,  155,  475,  476):  Not  a  resi- 
dent of  the  county  sixty  days. 

The  voter  made  arrangements  to  rent  a  house  in  the  county  on  the 
5th  day  of  September,   1888,  but   did  not  move  to  it  till  the  17^h. 


SMITH    VS.    JACKSON.  31 

Claimed  to  be  a  resident  because  of  his  intention  to  become  one.  It 
requires  the  conjunction  of  act  and  intention  to  establish  a  residence. 

N.  B.  Armstrong  (Record,  pp.  149,151,155,473):  Voted  in  Roane 
County,  but  had  not  lived  in  the  county  sixty  days.  Had  a  fiirm  in 
Roane  County.  Rentedit,  and  moved  to  Wirt  County  in  1880.  Claimed 
that  he  did  not  intend  to  abandon  his  residence  in  Roane  County,  but 
voted  in  Wirt  County  in  the  fall  of  1886,  which  act  concludes  him  to 
have  intended  to  establish  his  residence  there.  He  says  himself  that 
he  can  not  say  that  he  moved  his  family  back  sixty  days  before  the 
election. 

John  Ball :  This  man  was  not  far  removed  from  idiocy. 

John  iStinson:  Voted  in  Wayne  County,  and  lived  in  Log-^n  County. 
Moved  from  Wayne  to  Logan  in  th  ■  spring  of  1888.  He  was  examined 
by  the  commissioners  and  his  vote  admitted  on  a  ruling  that  he  had  not 
jiermanently  abandoned  his  former  residence.  The  uncontradicted  tes- 
timony is  against  his  right  and  the  voter  was  not  called,  altiiough  it 
appears  that  he  could  have  been.  This  is  one  of  the  cases  in  which  the 
ruling  was  based  upon  a  misunderstanding  of  the  law,  and  of  what 
kind  of  intention  it  takes  to  retain  a  residence. 

James  Dillen,  Walter  Dillen,  non-residents:  Father  and  son ;  moved 
from  Kentucky  less  than  a  vear  b«4bre  the  election. 

Ali  Artrip,  minor,  (Record,  pp.  179,  202,  204, 481,  486-487):  We  think 
there  can  be  no  question  but  that  this  voter  was  a  minor.  All  the  ad- 
missible testimony  is  to  that  effect. 

•lohn  Cox,  non-resident:  Moved  to  Kentucky  and  engaged  in  busi- 
ness as  a  resident,  paying  taxes,  working  roads,  etc.  We  think  his  re- 
turn to  West  Virginia  was  an  afterthought,  arising  from  the  gift  of 
some  land  to  his  wife  by  her  father.  There  is  more  doubt  about  this 
voter  than  any  other  considered,  but  the  committee  thinks  it  the  safer 
rule  to  exclude  his  vote. 

A.  Kaminski,  Lazarus  Wainer,  non-residents:  They  were  Russian 
peddlers,  naturalized  in  Baltimore,  September,  1888,  and  proved  that 
they  had  resided  there  for  a  year  next  preceding  the  election,  as  shown 
by  the  certificate  of  naturalization.  They  traveled  around  in  West 
Virginia.     Can  not  be  heard  to  contradict  their  naturalization  papers. 

George  Dean,  minor:  This  voter  swears  he  was  of  age  when  he 
voted — but  the  other  evidence  in  the  case  shows  that  he  did  not  tell 
the  truth.  He  seems  to  have  thought  that  he  was  doing.a  smart  thing 
in  taking  contestant  by  surprise,  and  contestee  insists  that  contestant 
shall  not  be  p<^rmitted  to  contradict  his  own  witness.  We  do  not  so 
understand  the  law  when  applied  to  circumstances  of  this  kind. 

Henry  Yeariug,  non-resident:  This  vote  was  clearly  illegal,  but  it 
does  not  certainly  appear  for  whom  it  was  cast. 

Joseph  Starling,  non-resident:  Clearly  illegal.  Dispute  as  to  how 
he  voted.  Considering  all  the  legal  evidence  we  do  not  think  there  is 
much  room  for  doubt. 

E.  D.  Lewis,  miuoB:  The  most  satisfactory  evidence  is  that  he  was 
a  minor. 

James  Bolyard,  minor:  Admitted  that  the  vote  was  illegal,  but  ob- 
jected to  on  the  ground  of  want  of  notice — which  we  have  already  con- 
sidered. 

Deducting  Yearing's  vote,  and  it  leaves  26  votes  to  be  added  to  the 
20  admitted;  in  all,  46  illegal  votes  cast  for  contestee,  which,  with  the 
12  plurality  on  the  face  of  the  returns,  makes  58  plurality  for  contest- 
ant, which  entitles  him  to  a  seat  unless  a  larger  number  ot  illegal  votes 
were  cast  for  him. 


32  SMITH   vs.   JACKSON. 

Contestant  concedes  that  the  following  votes  given  to  him  were 
illegal : 


George  Christian,  non-resident. 
Isaac  Dotson,  pauper. 
P.  Wayne,  minor. 


George  H.  Rice,  non-resident. 
Wesley  McDonald,  non-resident. 
Henry  Cunningham,  non-resident. 


The  committee  think  that  the  following  are  clearly  proven: 


Randolph  Ferrill,  minor. 

J.  G.  Mooney,  minor. 

Benjamin  Singer,  non-resident. 

Robert  Treet,  pauper. 

B.  F.  Bliising,  non-resident. 

T.  J.  Hurlburt,  non-resident. 


John  Hall,  convict. 
John  Mitchell,  non-resident. 
John  Woernlinger,  foreigner. 
Peter  Trent,  non-resident. 
Spencer  Dean,  non-resident. 
Daniel  Smith,  non-resident. 


Eighteen  altogether. 

There  are  others  who  clearly  were  not  entitled  to  vote ;  but  as  to 
some  of  them,  as  was  the  case  with  votes  charged  to  have  been  cast 
for  contestee  and  not  considered  by  the  committee,  it  does  not  ap- 
pear that  they  voted  ;  as  to  others  it  neither  appeals  for  whom  they 
voted  nor  with  what  party  they  aflflliated,  unless  it  be  by  what  they 
stated  after  the  election  and  after  tlie  legality  of  their  votes  had  been 
called  in  question. 

Fourteen  other  votes,  laborers  on  a  railroad,  are  attacked  on  the 
ground  that  they  had  not  lived  in  West  Virginia  for  a  year,  were  not 
residents  of  the  district  where  they  voted,  and  were  employes  of  a  cor- 
poration. 

As  to  some  of  them  it  clearly  apxiears  that  they  had  lived  in  the 
State  a  suflicieiit  time  to  entitle  them  to  vote.  As  to  none  of  them  is 
it  shown  by  competent  testimony  that  tliej"  had  not  been  so  resident, 
and  the  presumption  is  in  their  favor. 

They  belonged  to  a  construction  gang  which  had  its  headquarters 
■where  they  voted  ;  to  this  ])oint  they  constantly  returned ;  received  their 
mail  there  ;  had  their  washing  done  there,  and  had  a  right  to  fix  their 
residence  there.  Their  emi)loyment.by  a  corporation  did  not  give  them 
a  residence,  but  it  did  not  prevent  them  from  acquiring  one.  Some 
had  voted  there  a  year  before.  We  think  the  presumption  of  legality 
is  in  no  way  overcome  by  the  evidence. 

William  Wix,  a  minor,  attacked  by  contestant  and  claimed  by  con- 
testee to  have  voted  for  contestant  is  a  somewhat  peculiar  case.  His 
mother  and  sister,  with  whom  he  lived  and  who  testify  to  his  minority, 
are  Democrats  of  a  i)ronounced  type.  On  tbe  morning  of  the  election 
his  sister  says  she  asked  him  to  vote  for  the  Democrats,  but  that  he  de- 
clared his  intention  to  vote  Kepublican,  and  on  the  same  evening  told 
her  he  had  done  so.  It  is  a  little  strange  that  knowing  he  was  a  minor 
his  mother  .and  sister  should  be  sending  him  off  to  the  polls  and  urging 
him  to  vote  for  their  candidates,  considering  the  testimony  which  they 
subsequently  gave.  At  the  polls  he  was  challenged  by  a  Eepublicau, 
waited  until  his  challenger  was  out  of  the  way,  and  while  yet  at  the 
election  declared  he  had  voted  the  Democratic  ticket. 

We  think  it  too  uncertain  how  he  voted  to  charge  his  vote  to  either 
party. 

M.  E.  Polsne  is  another  voter  challenged  by  contestant.  Placed  on 
the  stand  by  contestee  to  prove  himself  a  legal  voter,  on  OTossexam- 
ination  he  stated  such  facts  as  showed  he  was  not,  and  then  volun- 
teered the  statement,  not  in  response  to  any  question  by  either  party, 
that  while  voting  the  Democratic  ticket  he  nevertheless  voted  for  con- 
testant, and  upon  that  testimony  it  is  now  insisted  that  this  vote  ought 
to  be  charged  against  coutestaat. 


SMITH   VS.    JACKSON.  33 

This  testimony  was  peculiar  to  say  the  least,  and  is  subject  to  grave 
suspicion,  but  as  the  witness  was  not  impeached  by  subsequent  testi- 
mony we  allow  the  charge  and  count  the  vote  as  illegal. 

This  gives  19  illi-gal  votes  for  contestant,  and  leaves  the  actual  plu- 
rality for  contestant  39,  which,  in  the  judgment  of  the  committee,  is  as 
near  a  correct  statement  of  the  true  vote  as  can  be  given  from  all  the 
evidence  before  us,  and  we  so  report. 

The  commit  tee,  therefore,  report  the  following  resolutions,  and  recom- 
mend their  ])assage : 

Resolved,  That  James  M.  Jackson  was  not  elected  as  a  Representa- 
tive to  the  Fifty-first  Congress  from  the  Fourth  Congressional  district 
of  West  Virginia,  and  is  not  entitled  to  the  seat. 

Resolved.,  That  Charles  B.  Smith  was  duly  elected  as  a  Representative 
from  the  Fourth  Congressional  district  of  West  Virginia  to  the  Fifty- 
first  Congress,  and  is  entitled  to  his  seat  as  such. 

H.  Mis.  1*7 3 


VIEWS  OF  THE  MINORITY, 


Tlie  various  rulings  of  the  governor  of  West  Virginia,  upon  which 
the  certificate  was  issued  to  Jackson,  were  in  accordance  with  law, but 
tliere  being  other  evidence  now  in  the  record  showing  that  the  returns 
counted  by  the  committee  correspond  in  each  case  to  the  vote  actually 
cast,  the  minority  so  count.  Believing,  however,  that  the  number  of 
illegal  votes  proved  by  the  record  to  have  been  cast  for  contestant  in 
excess  of  the  number  proved  to  have  been  cast  for  contestee  is  suflBcient 
to  overcome  the  plurality  thus  indicated  for  contestant,  the  right  of 
contestee  to  his  seat  is  sustained. 

35 


VIEWS  OF  THE  MINORITY. 


Mr.  Oeisp,  from  the  Committee  on  Elections,  submits  the  following  as 
the  views  of  the  minority: 

We  have  heard  read  that  portion  of  the  report  of  the  majority  relat- 
ing to  the  law  of  the  case,  and  in  the  main  we  agree  with  the  view 
therein  expressed ;  at  least  in  the  application  of  the  law  to  this  case  there 
seems  to  be  no  very  important  diiierence  between  us.  Under  the  law 
of  West  Virginia  the  returns  of  the  vote  cast  at  the  various  precincts 
or  voting  places  in  each  county  must  on  the  fifth  day  (Sundays  ex- 
cepted) after  every  election  be  by  the  officers  having  charge  of  the  bal- 
lots, poll  books,  and  certificates  placed  before  the  commissioners  of  the 
county  court,  who  are  required  to  convene  in  special  session  on  that 
day  for  the  examination  of  such  certificates  or  returns.  Upon  the  de- 
mand of  any  candidate  voted  for,  such  commissioners  are  required  to 
open  the  sealed  packages  of  ballots  and  recount  the  same.  Such  com- 
missioners shall  carefully  and  imi)artiany  ascertain  the  result  of  the 
election  in  their  county  and  make  out  and  sign  as  many  certificates 
thereof  as  may  be  necessary,  dependent  upon  the  number  of  officials 
voted  lor. 

In  the  case  of  an  election  for  Representative  in  Congress  the  commission- 
ers transmit  their  certificate  of  the  result  to  the  governor,  who  ascertains 
who  is  elected  and  makes  proclamation  thereof.  The  C/Crtificate  of  the 
commissioners  of  Calhoun  County  under  date  of  November  12, 1888,  duly 
transmitted  to  the  governor  of  West  Virginia,  show  that  C.  B.  Smith, 
contestant,  received  630  votes.  The  county  court  of  s^aid  county,  on 
January  7,  1889,  entered  an  order  changing  the  vote  of  Smith  to  632, 
an  increase  of  2  votes  over  the  original  return  or  certificate.  The  com- 
missioners for  Ritchie  County  sent  two  certificates  to  the  governor,  one 
dated  November  13,  1888,  showing  that  Smith  received  1,1)72  votes,  and 
the  other  dated  November  14,  1888,  showing  that  Smith  received  1,973 
votes,  the  later  certificate  showing  one  more  vote  for  Smith  than  the 
earlier.  The  governor  held  in  both  these  cases  that  he  was  bound  to 
act  upon  the  certificates  earliest  in  date,  for  the  reason  that  when  the 
commissioners,  acting  as  a  board  of  canvassers  under  the  law,  made 
and  transmitted  to  him  their  certificate  of  the  result  and  adjourned  their 
powers  ceased,  and  both  the  order  of  the  county  court,  correcting  the 
first  return  from  Calhoun  County,  and  the  second  certiQcate  from 
Ritchie  County  were  illegal,  unauthorized,  and  void. 

The  undersigned  are  inclined  to  think  the  governor  was  right  in  his 
view  of  the  law;  but  inasmuch  as  we  are  satisfied,  from  other  evidence 
contained  in  the  record,  that  the  later  returns  show  the  true  state  of 
the  vote  in  these  counties,  and  inasmuch  as  we  are  not  by  the  law  re- 
stricted in  our  investigation  as  was  the  governor,  we  accept  such  later 

37 

248080 


38  SMITH    VS.    JACKSON. 

returns  and  give  to  contestant  all  he  claims,  to  wit;  632  votes  in  Oal- 
lioim  County  and  1,973  votes  in  Ritchie  County. 

Perhaps  it  should  be  here  stated  that  counsel  for  contestant  appeared 
before  the  governor  and  insisted  that  the  law  required  the  governor  to 
determine  the  result  of  the  election  from  the  face  of  the  returns  or  certifi- 
cates, insisting  he  had  no  right  to  seek  or  look  to  any  other  source  of  in- 
formation. Alter  argument  the  governor  decided  this  view  correct,  and 
held  he  could  not  go  behind  the  returns. 

The  commissioners  of  Pleasant  County  certified  to  the  governor  that 
"J.  M.  Jackson  received  eight  hundred  and  twe  votes."  On  this  ques- 
tion the  governor,  in  his  order-book  declaring  the  result  of  the  election, 
says : 

The  words  and  letters  are  too  plain  for  any  mistake.  For  the  reasons  heretofore 
given  th<>re  is  no  authority  to  go  behind  the  returns.  The  vote  certified  must  be 
counted  if  enough  ai)pearH  to  ascertain  the  meaning.  In  an  action  upon  a  note  it  was 
lield  :  "Tiiere  was  no  error  in  admitting  the  note  sued  on  in  evidence,  because  the 
amount  thereof  is  written  four  hund  and  two  and  50-100  dollars."  {Glenn  vs. 
Poller,  72  lud.,  p.  ^)ib.) 

bo  it  has  been  held  that  the  abbreviation  in  a  declaration,  '*  Damages  one  thous 
dollars"  js  not  error.     (I  W.  L.  J.,  Mich.,  395.) 

If  enough  appear  to  make  the  return  intelligible  it  should  be  made  so. 

This  can  not  be  done  without  striking  out  one  letter  and  inserting  another,  or  by 
su))plTing  the  seemingly  omitted  letters.  Acting  upon  the  face  of  the  paper  the 
latter  appears  more  in  consonance  with  adjudged  cases.  The  least  number  would 
give  Jackson  eight  hundred  and  twelve  votes.     It  will  be  so  entered. 

After  carefully  considering  the  evidence  contained  in  therecord — evi- 
dence wholly  outside  of  said  certificate — we  thinkrhe  true  vote  received 
by  Jackson  in  Pleasants  County  was  802;  we  have  therefore  so  counted 
it,  thus  conceding  to  contestant  just  what  he  claims  as  to  the  true  vote  in 
this  county.  Contestee  averred  that  certain  polls  should  be  rejected 
because  he  says  it  does  not  appear  the  managers  of  election  were  duly 
sworn.  In  such  cases  the  law  of  West  Virginia  imperatively  says  the 
vote  shall  not  be  counted.  vVe  are  not  satisfied  that  the  evidence 
establishes  this  charge,  and  therefore  we  reject  no  polls  on  this  ground, 
thereby  again  agreeing  with  the  contention  of  contestant. 

Contestee  claimed  that  the  vote  of  Walton  precinct  in  Koane  County 
should  be  excluded  because  there  was  "such  misconduct  and  neglect 
and  failure  to  discharge  their  duty  on  the  part  of  the  commissioners  of 
election  who  held  the  election  on  the  6th  day  of  November,  1888,  at  that 
precinct  as  amounted  to  fraud."  It  appears  from  the  evidence  that  the 
ballot-box  was  an  oblong,  firm,  wooden  box,  with  a  sliding  lid,  with  a 
hole  through  the  top  to  receive  the  ballots ;  there  was  a  lock  on  the  box, 
but  no  key;  the  lid  would  slide  easily;  a  nail  was  used  to  keep  the  litl 
from  sliding;  the  nail  could  be  pushed  in  and  pulled  out  with  your 
fingers.  This  box  in  this  unsecured  condition  was  for  a  time  in  the  ex- 
clusive possession  of  Mr.  Garvin,  a  Republican  commissioner,  and  Chris. 
Summers, another  Repul)lican.  They  had  opportunity  to  have  tampered 
with  the  box,  and  to  this  extent  its  integrity  is  impeached. 

Mr.  Garvin  and  Chris.  Summers  were  not  sworn  by  the  contestant  to 
show  they  did  not  tamper  with  or  stuif  the  box.  Contestant  gave  con- 
testee notice  that  he  would  on  the  18th  day  of  July,  1889,  examine  these 
witnesse!J^,  but  he  did  not  do  so.  There  may  be  some  question  of  the  pro- 
priety of  accepting  this  return,  but  inasmuch  as  the  onlj'  circumstance 
to  show  actual  fraud  was  that  the  Republican  majority  was  larger  than 
was  expected  we  do  not  reject  the  vote  ;  thus  again  agreeing  with  the 
contention  of  contestant.  The  point  was  made  in  two  cases  that  the 
voting  place  in  precincts  had  been  unlawfully  changed  or  moved,  but 
it  appearing  the  vote  was  reasonably  full,  and  that  all  parties  on  elec- 


SMITH    VS.    JACKSON.  39 

tion  day  accepted  the  new  place  as  legal,  we  see  no  reason  for  rejecting 
votes  on  this  ground,  again  agreeing  with  the  contention  of  contestant. 
This,  we  believe,  disposes  of  all  exceptions  which  might  be  by  some 
thought  technical,  and  we  find  ourselves  at  that  point  in  the  case  where 
we  begin  to  examine  the  evidence  bearing  upon  the  votes  charged  to  be 
illegally  cast  for  contestant,  and  the  evidence  bearing  upon  votes  charged 
to  be  illegally  cast  for  contestee,  in  full  accord  with  the  contestant  as 
to  the  number  of  votes,  including  those  charged  to  be  illegal  which 
were  cast  for  the  parties  to  this  contest,  respectively : 

For  Charles  B.  Smith - 19,837 

For  James  M.  Jackson 19,825 

Contestant  avers  that  102  votes  should  be  deducted  from  the  19,825 
votes  cast  for  contestee  because  he  claims  that  number  of  said  votes 
were  illegal,  naming  the  voters. 

Contestee  avers  that  127  votes  should  be  deducted  from  the  19,837 
votes  cast  for  contestant  because  he  claims  that  number  of  said  votes 
were  illegal,  naming  the  voters. 

The  legality  or  illegality  of  each  of  these  votes  depends  upon  the  law 
of  West  Virginia  as  to  the  qualification  of  voters  and  the  facts  proven 
as  to  each  voter. 

First,  as  to  the  law : 

The  male  citizens  of  the  State  shall  be  entitled  to  vote  at  all  elections  held  within 
the  countiei  iu  which  they  rt'spectively  reside,  but  no  person  who  is  a  minor,  or  of 
unsound  mind,  or  a  pauper,  or  who  is  under  conviction  of  treason,  felony,  or  bribery 
in  an  election,  or  who  has  not  been  a  resident  of  the  State  for  one  year,  and  of  the 
conuty  iu  which  he  offers  to  vote  for  sixty  days  next  preceding  sncli  offer,  shall  be 
permitted  to  vote  while  such  disability  continues;  but  no  person  in  the  military, 
naval,  or  marine  service  of  the  United  States  shall  be  deemed  a  resident  of  this  State 
by  reason  of  being  stat.Kmed  therein.  (Constitution  West  Virginia,  Article  IV,  sec. 
1,     See  published  acts  of  1872-73,  page  8.) 

The  male  citizens  of  the  State  shall  be  entitled  to  vote  at  all  elections  held  within 
the  counties  in  which  they  respectively  reside ;  but  no  person  who  is  a  minor,  or  of 
unsound  mind,  or  a  pauper,  or  who  is  under  conviction  of  treason,  felony,  or  bribery 
in  an  election,  or  who  has  not  been  a  resident  of  the  State  for  one  year,  and  of  The 
county  in  which  he  offers  to  vote  for  sixty  days  next  i)receding  such  election,  and 
who  is  not,  at  the  time  of  the  election,  an  actual  and  bona  fide  resident  of  the  district 
in  which  he  offers  to  vote,  shall  be  permitted  to  vote  in  such  district  while  such  dis- 
ability continues.  And  no  person  iu  the  military,  marine,  .or  naval  service  of  the 
United  States  shall  be  deemed  a  resident  of  this  State  by  reason  of  his  beiug  stationed 
therein  ;  nor  shall  any  person  in  the  employ  of  an  incorporated  company,  or  of  this 
State,  be  deemed  a  resident  of  any  county,  or  of  any  district  therein,  by  reason  of 
being  employed  in  said  county  or  district.  (Acts  1882,  ch.  15.5,  sec.  9.  See  published 
acts  of  1882,  p.  493.) 

Second.  As  to  the  facts.  The  229  votes  assailed  by  the  parties  to  this 
contest  are  attacked  upon  the  following  grounds:  It  is  averred  that 
some  are  minors,  that  some  are  non-residents  of  the  State,  that  some  are 
non  residents  of  the  counties  where  they  voted,  that  some  voted  with- 
out thn  election  precinct  of  their  residence,  that  some  are  of  unsound 
mifid,  that  some  are  paupers,  and  that  some  have  been  convicted  of 
felony.  To  establish  the  charges  made  against  the  legality  of  these 
votes  some  600  witnesses  were  examined,  and  their  evidence  appears 
in  the  record. 

The  undersigned  believe  the  only  correct  and  satisfactory  way  to  de- 
termine who  was  elected  to  this  Congress  from  the  Fourth  Congres- 
sional district  of  West  Virginia  by  the  legal  voters  thereof,  was  for  the 
Committee  on  Elections  of  the  House  to  consider  each  contested  vote, 
examine  all  the  evidence  in  the  record  bearing  thereon,  and  then  by  a 
vote  of  the  committee  determine  the  legality  or  illegality  thereof.  In 
this  way,  and  in  this  way  only,  the  undersigned  thiuk  could  this  case  be 


40 


SMITH   VS.   JACKSON. 


satisfactorily  determined.  Certainly  any  court  charged  with  the  duty 
of  deciding  the  question  oi  fact  presented  in  the  record  would  have 
thus  proceeded.  So  thinking,  the  undersigned  proposed  this  method 
of  proceeding.  The  majority  of  the  committee  not  agreeing  with  this 
view  declined  so  to  proceed,  and  up  to  the  filing  of  this  report  the  un- 
dersigned are  not  informed  as  to  what  votes  the  majority  determine  to 
be  legal  or  what  votes  they  determine  to  be  illegal. 

The  undersigned  having,  before  the  determination  of  this  case  by  the 
committee,  each  t^eparately  and  carefully  considered  all  the  evidence 
bearing  upon  every  vote  contested,  have  again  and  together  reviewed 
and  considered  all  the  evidence  bearing  upon  each  vote  challenged  by 
either  party  and  here  present  their  conclusion. 

We  find  that  the  following- named  voters  each  deposited  a  ballot  for 
Jackson,  the  contestee,  and  that  said  ballot  was  illegal  and  ought  to  be 
deducted  from  the  vote  heretofore  stated  as  the  vote  for  Jackson. 


1.  W.  R.  Siirratt. 

2.  C.  1).  Staliiaker. 

3.  J.  L.  Starcher. 

4.  Charles  Reyuolds. 

5.  J.  G.  Armstrong. 

6.  J.  C.  Deaton. 

7.  John  Carney, 
a  E.  J.  Long. 

1).  J.  D.  Summers. 

10.  John  Ball. 

11.  W  S.  Napier. 


12.  W.  W.  Bromfield. 

13.  Alderson  Watts. 

14.  Napoleon  Adkius. 

15.  C.  O.  Bellemy. 

16.  Wra.  Noe. 

17.  Elias  Browning. 

18.  Abram  Jones. 

19.  Jas.  Dillon. 

20.  Walter  Dillon. 

21.  A.  Kaminsky. 

22.  Lazrns  Waines. 


23.  Jas,  Powell. 

24.  George  Dean, 

25.  W,  S,  Wooding. 

26.  Noble  Hunter. 

27.  James  Bolyard. 

28.  John  Cochran, 

29.  Henry  Reynolds. 

30.  H.  B.  Armstrong. 

31.  Lewis  Mattock. 


We  find  that  the  following-named  voters  each  deposited  a  ballot  for 
contestant  Siflith,  and  that  said  ballot  was  illegal  and  ought  to  be  de- 
ducted from  the  vote  heretofore  stated  as  the  vote  for  Smith  : 


1. 

Peter  Trent. 

23. 

Thos.  Burt. 

45. 

John  MitcheB. 

2. 

Spencer  Dean. 

24, 

Lewis  Mallory. 

46. 

John  Hall. 

3. 

David  Smith. 

25. 

John  Harris. 

47. 

Wesley  McDonald. 

4. 

P.  Wayne. 

26. 

E.  J.  Anderson, 

48. 

H.  S.  Greathouse. 

5. 

William  Wlx. 

27. 

0,  Yancey. 

49. 

P.  S.  Greathouse. 

6. 

John  Branneu,  jr. 

28. 

Hez.  White. 

50. 

Wm.  Bradshaw. 

7. 

John  Sheets. 

29. 

Charles  Quails. 

.51, 

John  G.  Dickson. 

8. 

CM.  Messerly. 

30. 

Marcellus  Thomas. 

.52, 

Jesse  Morris. 

9. 

Henry  Dye. 

31. 

Ernest  Graves. 

53. 

H.  Sheariffe. 

10. 

I.  C.  Leonard. 

32. 

Martin  Wright, 

54. 

Austin  Talferee. 

11. 

John  Davis. 

33. 

John  Diggs. 

55, 

W   H.  MameL 

12. 

J.  T.  Mooney, 

34. 

Robt,  Brown, 

56. 

Edward  Steed. 

13. 

Wm.  McCoy. 

35. 

James  Fortune 

57. 

Henry  Cunningham, 

14. 

Robt.  Treet. 

36. 

Flem  Washington. 

58. 

George  Anderson. 

15. 

B.  F.  Blessing. 

37. 

Major  Jones. 

59. 

John  Woemberger. 

16. 

Isaac  CuUens. 

38. 

W.  F,  Bird. 

60. 

Israel  Taylor. 

17. 

Wm.  Lee. 

39. 

Geo,  F.  Jones. 

61. 

Robert  Alexander. 

18. 

T.  G.  Hulbert. 

40. 

James  Parr, 

62. 

Oscar  Cunningham. 

19. 

Geo.  H.  Rice. 

41. 

Samuel  Gray. 

63. 

Wm.  White. 

20. 

E.  Fletcher. 

42. 

F,  L,  Johnson. 

64. 

R.  B.  Mussetter. 

21. 

Elijah  Kiggins. 

43. 

Simon  Poole. 

65. 

John  Parkins. 

22. 

J.  Lute  or  Luh. 

44. 

Frank  Bratten. 

66. 

N.  E.  Polsen. 

The  evidence  tends  to  show  the  following-named  persons  voted 
for  Smith,  contestant,  and  that  their  votes  were  illegal  5  but  the  evi- 
dence is  not  so  clear  as  in  the  other  cases,  therefore  they  are  separated 
from  them : 

John  W.  Burk. 
16.  Perry  Shriver. 
Richard  Hodgin. 
Jas.  M.  Cochran. 
Charles  Walker. 
Isaac  Davis. 
P.  Robinson. 


1. 

Geo.  S.  Ferrill. 

8. 

Henry  S.  Poney. 

15. 

2. 

Randolph  Ferrill. 

9. 

Mate  Crago. 

16. 

3. 

Thos.  Ferrill. 

10. 

Wm.  Crago. 

17. 

4. 

A.  H.  Blackshire. 

11. 

George  Goodwin. 

18. 

5. 

Charles  Anderson. 

12. 

Rufus  Corbin. 

19. 

6. 

Chris.  Anderson. 

13. 

A.  C.  Donald. 

20. 

7. 

Walter  Henry. 

14. 

H.  P.  Donald. 

21. 

SMITH   VS.   JACKSON.  41 

8UMMAKY. 

Total  vote  for  Jackson ..., 19,825 

Deduct  illegal  votes  cast  for  him 31 

Correct  vote  of  Jackson 19,794 

Total  vote  for  Smith 19,837 

Deduct  votes  clearly  proved  to  be  illegal  and  cast  for  him 66 

Deduct  those  the  evidence  tends  to  show  illegal 21 

87 

19,750 

On  this  basis  the  vote  would  be — 

J.ickson 19,794 

Smith 19,750 

Majority  for  Jackson 44 

If  we  deduct  only  those  votes  which  are  clearly  and  distinctly  proved 
illegal  and  cast  tor  Smith  the  vote  would  be — 

Jackson,  total  vote 19,825 

Illegal  votes 31 

Total  legal  vote  of  Jackson 19,794 

Smith,  total  vote 19,837 

Illegal  votes 66 

Total  legal  vote  of  Smith 19,771 

Clear  majority  for  Jackson 23 

The  undersigned  are  therefore  of  the  opinion  that  the  contestee, 
Jackson,  was  duly  elected,  and  we  submit  the  following  resolutions : 

Resolved,  That  C.  B.  Smith  was  not  elected  a  Representative  in  Con- 
gress from  the  Fourth  district  of  West  Virginia,  and  is  not  entitled  to 
a  seat  therein. 

Resolved,  That  James  M.  Jackson  was  duly  elected  a  Representative 
in  Congress  from  the  Fourth  district  of  West  Virginia,  and  is  entitled 
to  retain  his  seat  therein. 

Chables  F.  Ceisp. 
j08.  h.  outhwaite. 
Chas.  T.  O'Ferrall. 
Levi  Maish. 
L.  W.  Moore. 
E.  1».  0.  Wilson. 


GEOEGE  W.  ATKmSON  vs.  JOHN  0.  PENDLETON. 

FIKST  WEST  VIRGINIA. 


Contestant  alleged  fraud  pending  a  recount  in  Wetzel  County,  and 
both  parties  charged  illegal  voting.  The  committee  find  the  charges 
as  to  Wetzel  County  sustained  by  the  evidence.  Disregarding  the 
tainted  recount  in  this  county,  and  counting  the  votes  as  originally 
returned,  the  contestant  has  a  majority  on  the  face  of  the  returns,  and 
the  burden  oH  proof  shifts  to  the  contestee;  he  not  having  shown  that 
a  larger  number  of  illegal  votes  were  cast  for  contestant  than  for  him- 
self, but  the  contrary  appearing  from  the  evidence,  the  contestant  is 
entitled  to  the  seat. 

The  minority  differ  as  to  matters  of  fact  only,  the  law  as  laid  down 
by  the  committee  in  the  previous  case  of  Smith  vs.  Jackson  being  ac- 
cepted by  both  sides.     (See  minority  report,  p.  61.) 

The  resolutions  presented  by  the  committee  were  adopted  by  the 
House  February  27,  1890,  by  a  vote  of  162  to  0  (the  Speaker  announc- 
ing the  names  of  72  members  present  and  not  voting),  and  Mr.  Atkin- 
son was  sworn  in.  The  debate  will  be  found  on  pages  1731  to  1781  of 
the  Eecord. 

(1)  Fraud.     To  be  eliminated  from  the  result. 

Returns  which  are  tainted  with  fraud  can  not  be  made  the  founda- 
tion of  the  title  to  a  seat  in  the  House.  The  result  should  be  purged 
of  the  fraud  if  practicable,  and  the  poll  only  thrown  out  when  no  other 
alternative  remains  but  to  give  effect  to  the  fraud  or  to  reject  the  poll. 

(2)  Becoant. 

The  returns  of  election  officers  are  prima  facie  correct,  and  a  recount 
showing  a  different  result  can  not  be  regarded  unless  it  affirmatively 
appears  that  the  ballots  recounted  are  the  same  as  those  originally 
counted,  and  in  the  same  condition. 

(3)  Burden  of  proof. 

Contestant  being  shown  to  have  been  elected  on  the  face  of  the  re- 
turns, the  burden  shifts,  and  it  devolves  upon  contestee  to  establish 
his  right  to  the  seat  which  he  occupies  by  affirmative  evidence. 

43 


44  ATKINSON    VS.    PENDLETON. 

(4)  Residence. 

The  presumption  should  be  in  favor  of  actual  residence,  as  against  a 
claimed  intent  to  return  to  an  abandoned  residence,  when  the  intent 
only  appears  by  the  act  of  voting. 


HEPORT. 


February  19, 1890. — Mr.  Eowell,  from  the  Committee  on  Elections, 
submitted  the  following  report: 

The  Committee  on  Elections,  having  had  under  consideration  the 
contested-election  case  of  George  W.  Atkinson  vs.  Johu  O.  Pendleton, 
from  the  First  Congressional  district  of  West  Virginia,  have  duly  con- 
sidered the  same  and  submit  the  following  report: 

By  the  notice  of  contest  and  answer  thereto  two  issues  are  raised  in 
the  case. 

One  is  the  allegation  of  fraud  pending  a  recount  of  the  ballots  in 
Wetzel  County,  and  the  other  is  the  charge  made  by  both  parties,  at- 
tacking a  large  number  of  votes  for  illegality. 

By  the  statutes  of  West  Virginia,  after  the  returns  have  been  made 
to  the  clerk  of  the  county  commissioners'  court  the  commissioners,  on 
demand  made  by  any  candidate,  are  required  to  recount  the  ballots. 

The  nature  of  the  claim  of  contestant  and  its  effect  upon  the  result 
are  correctly  and  succinctly  stated  in  a  brief  filed  in  the  case  by  contest- 
ant, from  which  we  quote  as  follows : 

The  returns  which  were  sent  to  the  governor  from  the  First  Congressional  district, 
and  which  included  the  falsified  returns  from  Wetzel  County,  were,  as  stated  by  the 
contestee  in  his  answer  to  the  notice  of  contest,  as  follows : 

For  contestee 19,261 

For  contestant ,. 19,243 

Making  the  contestee's  plurality 19 

The  fraud  complained  of  is  alleged  to  have  been  committed  with  ref- 
erence to  the  two  precincts  of  Martin's  School-House  and  Archer's  Fork. 

The  claim  of  the  contestant  is  that  after  the  ballots  of  these  two  pre- 
cincts had  been  counted  by  the  judges  and  clerks  of  election,  and  had 
been  delivered  with  the  poll-books  to  the  clerk  of  the  count.v  court,  14 
ballots  of  those  from  Martin's  School-House  and  10  ballots  of  those 
from  Archer's  Fork  were  changed,  or  "  scratched,"  by  having  the  con- 
testant's name  erased,  so  that  upon  the  recount  by  the  county  court 
the  votes  for  the  contestant  at  Martin's  School-House  appeared  to  be 
111  instead  of  125  as  returned  by  the  election  officers,  and  those  at 
Archer's  Fork  148  instead  of  158. 

Two  of  these  "  scratched  "  ballots  not  only  had  the  contestant's  name 
erased,  but  the  contestee's  inserted,  so  that  two  votes  were  thus  im- 
properly added  to  the  aggregate  for  the  contestee. 

If  these  twenty-four  votes  should  be  restored  to  the  contestant  and 
these  two  votes  deducted  from  the  votes  for  the  contestee,  and  the  other 

46 


46  ATKINSON    VS.    PENDLETON. 

returns  sent  to  the  governor  allowed  to  remain  unchanged  the  result 
would  be — 

For  the  contestant 19,242 

Plus 24 

19.266 

For  the  contestee 19,261 

Less 2 

19,259 

Showing  a  plurality  for  coDtestant  of 7 

The  rule  has  been  announced  over  and  over  again  that  returns  which 
are  tainted  with  fraud  can  not  be  made  the  foundation  of  the  title  to  a 
seat  in  the  House.  In  the  case  of  Washburn  vs.  Voorhees  (3  Congres- 
sional Contested  Election  Cases,  64),  a  number  of  authorities  are  cited  in 
support  of  the  rule  which  is  there  laid  down  as  follows  : 

When  the  result  in  any  precinct  has  been  shown  to  be  so  tainted  with  fraud  that 
the  truth  can  not  be  deduced  therefrom,  then  it  should  never  be  permitted  to  form 
a  part  of  the  canvass  The  precedents,  a.s  well  as  the  evident  requirements  of  truth, 
not  only  banction  but  call  for  the  rejection  of  the  entire  poll  when  stamped  with  the 
characteristics  here  shown. 

While  all  agree  that  where  fraud  is  shown,  the  result  of  the  fraud 
should  be  in  some  way  avoided,  there  has  been  much  discussion  as  to 
the  manner  in  which  this  result  is  to  be  reached,  and  it  may  be  re- 
garded as  settled  that  the  poll  will  be  "  purged  "  of  the  fraud  if  that  be 
practicable,  and  only  rejected  when  do  other  alternative  remains  but 
to  give  effect  to  the  fraud  or  to  reject  the  poll. 

In  the  present  case  it  is  unnecessary  to  enter  into  the  discussion  of  this 
question,  for  the  result  will  be  the  same  whether  the  polls  in  the  two 
disputed  precincts  be  purged  by  a  resort  to  the  returns  made  by  the 
election  officers,  or  be  rejected  altogether.  This  will  be  seen  from  the 
following  calculation. 

At  Martin's  School-House  the  total  number  of  votes  for  the  contestant,  as  returned 
by  the  election  officers,  was  125.  The  county  court,  by  deducting  the  scratched 
tickets,  fourteen  in  number,  reduced  these  to  111,  which  was  the  number  included  in 
the  returns  sent  to  the  governor.  The  number  of  votes  for  the  contestee  was  allowed 
to  remain,  and  was  certified  to  the  governor  as  returned  by  the  election  officers  at 
134.  (4;?7.)  At  Archers'  Fork  the  numbers  returned  by  the  election  officers  were,  for 
the  contestant  158,  and  for  the  contestee  149.  On  the  recount,  2  votes  were  added  to 
the  contestee's  an<l  10  deducted  from  the  contestant's,  so  that  the  returns  sent  to  the 
governor  were,  for  the  contestant  148,  and  for  the  contestee  151.  {'27.)  If,  now,  these 
two  precincts  be  entirely  eliminated  from  the  returns  sent  to  the  governor  from  the 
entire  congressional  district,  the  result  will  be  as  follows: 

For  the  contestant : 

Returns  sent  to  the  Governor (37) 19,242 

Deduct  Martin's  School-House - Ill 

Deduct  Archer's  Fork 148 

259 

18,983 
For  the  contestee : 

Returns  sent  to  the  Governor  (37) 19,261 

Deduct  Martin's  school  house 134 

Deduct  Archer's  Fork 151 

285 

18. 976 

Showing  a  plurality  for  the  contestant  of 7 

If  the  poll  be  purged  by  restoring  to  the  contestant  the  24  votes  of  which  he  was 
fraudulently  sought  to  be  deprived,  and  deducting  from  the  contestee  the  2  votes 


ATKINSON    VS.    PENDLETON. 


47 


•which  he  gained  by  reason  of  the  fraud,  the  result,  as  already  shown,  will  be  the 

same,  namely : 

For  the  contestant: 

Eeturns  sent  to  tlie  Governor  (37) 19,242 

Add 24 

19,266 

For  the  contestee : 

Returns  sent  to  the  Governor  (37) 19,261 

Deduct 2  19,259 

Purality  for  contestant 7 

The  claim  of  the  contestant  is,  that  the  ballots  which  were  voted  at  these  twq' pre- 
cincts were  not  scratched  by  the  voters  who  deposited  them,  and  were  properly 
counted  in  their  true  and  unaltered  condition  by  the  election  officers,  but  that  after 
leaving  the  custody  of  these  oflacers  they  were  tampered  with  and  altered.  It  does 
not  devolve  upon  the  contestant  to  show  how  or  by  what  persons  this  crime  was  com- 
mitted, nor  can  it  be  for  a  moment  supposed  that  direct  proof  would  be  produced  of 
the  very  fact  of  the  alteration,  testified  to  by  persons  who  witnessed  the  actual  per- 
petration of  the  fraud.  Publicity  would  be  fatal,  and  secrecy  was  essential  to  the 
success  of  the  scheme,  and  unless  one  of  the  participants,  as  seems  to  have  so  nearly 
happened  in  this  case,  should  himself  make  the  disclosure  resort  must  be  had,  as  in 
other  cases  of  fraud,  to  circumstantial  evidence.  The  contestant  has  proved  this 
branch  of  his  case  by  showing,  first,  that  the  ballots  were  without  blemish  when  they 
left  the  hands  of  the  election  officers,  and,  second,  that  the  manner  in  which  the  bal- 
lots were  afterwards  kept,  and  the  persons  who  had  access  to  them  afforded  the  op- 
portunity for  the  crime  and  made  its  perpetration  probable. 

In  order  to  authorize  a  recount  of  ballots  in  an  election  contest  it 
must  affirmatively  appear  that  they  have  been  kept  as  required  by  law, 
and  that  there  has  been  no  opportunity  to  tamper  with  them.  (Paine 
on  Elections,  sec.  787.) 

Before  courts  or  legislative  bodies  can  give  weight  to  the  result  of 
a  recount  there  must  be  absolute  proof  that  the  b«llot-boxes  containing 
such  ballots  have  been  safely  kept  and  that  the  ballots  are  the  identi- 
cal ballots  cast  at  the  election  (Paine  on  Elections,  sec.  776,  and 
authorities  cited).  An  impartial  public  count  of  the  ballots  by  sworn 
officers  made  at  the  close  of  the  polls  is  better  evidence  of  what  the 
ballot-boxes  theu  contained  than  a  subsequent  count  made  after  a  long 
exposure  of  the  boxes  to  the  tampering  of  dishonest  partisans  (Paine, 
sec.  787). 

Taken  together,  the  adjudications  upon  this  question,  judicial  and 
legislative,  establish  conclusively  the  doctrine  that  the  returns  of  elec- 
tion officers  are  to  be  held  prima  facie  correct;  that  a  recount  changing 
the  result  will  not  be  regarded  unless  it  affirmatively  appears  that  the 
ballots  recounted  are  the  same,  and  in  the  same  condition  as  they  were 
when  originally  counted. 

An  opi>ortunity  to  tamper  with  the  ballots  by  unauthorized  persons, 
or  a  failure  to  keep  them  as  the  law  directs,  will  destroy  the  value  of 
the  ballots  as  evidence  when  recounted  and  a  different  result  reached 
than  the  one  returned. 

Changing  ballots  by  scratching  or  by  substitution,  after  return  made, 
is  an  old  method  of  committing  fraud  to  change  the  result  of  elections 
in  cases  of  close  contest. 

Even  when  the  ballots  have  been  in  the  sole  custody  of  sworn  officers 
of  the  law,  it  has  been  found  practicable  for  dishonest  men  to  make 
such  changes  in  such  a  secret  way  as  to  defy  detection,  and  on  that 
account  laws  have  been  enacted  requiring  the  destruction  of  the  ballots 
as  soon  as  counted,  so  that  they  could  not  thereafter  be  used  to  over- 
throw the  election  returns.  In  large  cities  especially,  is  it  thought  safer 
to  risk  the  possibility  of  error  in  the  original  count  than  to  take  the 
chances  of  subsequent  changes. 


48  ATKINSON   VS.    PENDLETON. 

While  in  West  Virginia  the  law  makes  provision  for  a  recount,  it 
does  not  dispense  with  the  legal  requirements  of  safe-keeping  of  the 
ballots,  pending  the  recount. 

We  now  consider  the  facts  as  they  appear  in  the  record  with  refer- 
ence to  the  recount  in  Wetzel  County. 

We  quote  again  from  the  brief  of  contestant  as  being  a  fair  state- 
ment of  the  evidence  in  regard  to  original  count  and  the  recount. 

The  election  officers  at  Martin's  School  House  were  three  commissioners,  namely : 
John  E.  Woods,  Thomas  H.  Alley,  and  A.  B.  Streight ;  and  two  clerks,  namely :  Will- 
iam J.  Wykert  ancl  W.  H.  Parks.  Of  these.  Woods,  Alley,  and  Wykert  were  Demo- 
crats, and  Streight  and  Parks  were  Republicans.  (:i55,  336,  337,  343.)  The  statute, 
after  providing  that  every  voter's  name  shall  be  entered  upon  the  poll-books  as  his 
ballot  is  received,  proceeds  as  follows  (Code  18b7,  ch.  3,  sec.  18) : 

"As  soon  as  possible  after  the  polls  are  closed  at  each  place  of  voting  for  which  no 
canvassers  are  appointed,  the  names  entered  on  the  poll-books  shall  be  counted  by 
the  commissioners  and  clerks,  and  the  number  thereof  be  set  down  in  words  at  length 
at  the  foot  of  the  list,  which  shall  then  lie  signed  by  the  inspectors  and  clerks;  the 
ballot-box  shall  then  be  opened,  and  one  of  the  commissioners  taking  therefrom  one 
ballot  at  a  time,  in  the  presence  of  all  the  other  officers,  shall  read  therefrom  the  de- 
signationsof  theofficestobe  tilled  and  the  names  of  the  persons  voted  forforeach  office, 
and  hand  the  ballot  to  another  of  said  commissioners,  who,  if  satisfied  that  it  was  cor- 
rectly read,  shall  string  it  on  a  thread.  The  contents  of  the  ballots,  as  they  are  read, 
shall  be  entered  by  the  clerks,  under  the  supervision  of  the  commissioners,  on  tally 
papers  for  the  purpose,  by  suitable  marks  made  opposite  to  or  under  the  name  of  each 
person  voted  for,  so  as  to  show  the  number  of  votes  received  by  every  person  for  every 
office  to  be  filled.  The  ballots  shall  be  counted  as  they  are  strung  upon  the  thread, 
and  whenever  the  number  shall  be  equal  to  the  number  of  voters  entered  upon  the 
poll-books,  the  excess,  if  any,  remaining  in  the  ballot-box,  shall  be  immediately  de- 
stroyed, without  unfolding  or  unrolling  the  same,  or  allowing  any  one  to  examine  or 
know  the  contents  thereof." 

The  statute  then  provides  (section  20)  for  certifying  the  result,  sealing  the  ballots, 
poll-books,  and  certificates,  and  sending  them,  within  four  days,  by  the  hands  of  one 
of  the  commissioners,  to  the  clerk  of  the  county  court,  with  a  duplicate  of  the  certifi- 
cates and  one  of  the  poll-books  to  the  clerk  of  the  circuit  court.  Let  us  see  how 
faithfully  these  particular  provisions  of  the  law  were  complied  with. 

The  evidence  of  John  R.  Woods,  one  of  the  Democratic  commissioners,  will  be  found 
on  page  336  of  the  printed  record.  He  says  that  after  the  polls  were  closed  and  the 
count  commenced  Streight  took  the  ballots  from  the  box  and  handed  them  to  the 
witness,  who  read  otf  the  vote  and  handed  the  ballots  to  Alley,  who  strung  them. 
The  witness  was  forty-three  years  of  age  and  used  glasses.  The  greater  part  of  the 
counting  was  done  by  daylight,  but  part  of  it  was  done  by  night,  by  lantern-light, 
which  the  witness  thought  was  sufficient  to  enable  him  to  see  plainly  to  read  the 
ballots.  When  asked  whether  he  saw  any  Republican  tickets  on  which  the  name  of 
the  contestant  had  been  scratched  or  erased  in  any  manner,  the  witness  answered : 
"/  donH  remember  that  I  did."  He  mentions  one  Democratic  ticket  from  which  the 
contestee's  name  had  been  erased,  and  this  accords  with  all  of  the  evidence  upon  the  sub- 
ject and  w  i  th  the  poll-books  and  tally-sheets,  which  sho  w  that  the  tot  al  number  of  votes 
cast  was  one  more  than  the  aggregate  counted  for  the  two  candidates  for  Congress 
(437). 

The  other  Democratic  commissioner  testifies  (343)  that  after  counting  until  11 
o'clock  on  the  night  of  the  election  an  adjournment  was  taken  until  next  morning  ; 
that  during  the  adjournment  the  commissioners  kept  the  ballot-box  and  the  ballots  in 
their  custody,  leaving  the  tally-sheets  with  the  clerks;  that  next  morning,  on  re- 
suming the  count,  the  ballots  counted  the  evening  before  were  gone  over  again,  so 
as  to  verify  the  accuracy  of  their  count.  On  the  question  of  the  lights  at  night  he 
says : 

"  We  had  good  lights;  we  had  two  lights  all  the  time,  and  part  of  the  time  three. 
We  could  see  plainlij  %chat  we  were  doing;  at  least  I  could,  and  I  heard  no  complaint 
from  others  about  the  light."  Corroborating  in  other  particulars  the  testimony  of 
Woods,  he  adds  the  significant  fact  that  the  ballots  were  counted  twice,  so  far  as 
the  Congressional  vote  was  concerned,  on  account  of  errors  made  by  the  clerks  iu 
tallying.  This  man  had  been  for  thirty  years  assisting  as  an  officer  in  the  holding 
of  elections,  and  to  the  question  whether  it  was  possible  that  fourteen  Republican 
ballots,  from  which  the  contestant's  name  had  been  erased,  could  have  passed  through 
his  hands  without  his  seeing  them,  he  answered  :  "I  don't  think  it  possible,  because 
I  know  he  was  not  scratched  at  Martin's  School  House." 

A.  B.  Streight,  the  Republican  commissioner  testifies,  (335) :  "  I  took  the  tickets 
out  of  the  box,  opened  them  out,  and  gave  them  to  John  Woods,  one  of  the  other 


ATKINSON   VS.    PENDLETON.  49 

judges  of  said  election  ;  after  I  gave  him  the  first  ticket  I  took  out  of  the  box,  I  read 
all  the  balance  over  carefully  to  myself  while  John  Woods  was  reading  the  one 
handed  to  him  out  loud  to  the  tallyman  ;  I  read  every  ticket  in  the  box."  He  saw 
not  a  single  Republican  ticket  with  the  contestant's  name  erased.  This  witness  cor- 
roborates Woods  and  Alley  with  reference  to  the  light  and  the  other  particulars  of 
the  count. 

The  two  clerks,  Wykert  (.335)  and  Parks  (337),  did  not  see  the  ballots,  but  tallied 
them  as  they  were  read,  and  must  in  this  way  have  been  cognizant,  as  actors  in  the 
res  geatas,  of  any  erasures  which  were  not  overlooked  by  the  commissioners.  Wykert, 
the  Democrat,  when  asked  whether  his  attention  was  called  to  any  ballot  from  which 
the  name  of  either  of  the  candidates  for  Congress  had  been  erased,  says :  "  I  could  not 
be  positive;  I  think  there  was  one  and  maybe  two,  hut  not  more."  Parks,  the  Repub- 
lican, says  that  his  attention  was  called  to  only  one  ballot  which  had  been  scratched 
as  to  the  Congressional  candidates,  and  that  was  the  one  from  which  the  contestee's 
name  had  been  erased.  With  reference  to  the  lights  and  otber  particulars,  the  two 
clerks  confirm  what  the  commissioners  stated. 

No  other  witness  is  examined  on  either  side  with  reference  to  the  circumstances  of 
this  count,  and  indeed  it  is  to  be  inferred,  from  the  evidence  which  has  been  given, 
that  no  other  persons  were  present.'  There  is,  therefore,  the  concurrent  and  uncon- 
tradicted testimony  of  all  five  witnesses  to  the  transaction,  all  of  whom  had  some, 
and  three  of  whom  had  the  best  opportunities  to  become  acquainted  with  the  facts 
and  three  of  whom  were  testifying  against  their  party  interests,  establishing  posi- 
tively the  fact  that,  when  the  election  officers  counted  them  these  ballots  were  not 
scratched,  and  it  is  shown  that  the  ballots  were  safely  delivered  to  Snodgruss,  the 
deputy  clerk  of  the  county  court.     (336.) 

The  election  officers  at  Archer's  Fork  were  three  commissioners,  namely :  Samuel 
Fisher,  J.  D.  Brookover,  and  Samson  Starkey.  and  two  clerks,  namely,  S.  I.  Earl 
and  G.  W.  Belch.  Of  these,  Fisher,  Brookover,  Earl,  and  Belch  were  Democrats,  and 
Starkey  the  only  Republican. 

Samuel  Fish'jr,  one  of  the  Democratic  commissioners,  does  not  remember  (370)  any 
ticket  from  which  the  name  of  either  candidate  had  been  scratched,  though  his  recol- 
lection of  the  circumstances  does  not  seem  very  clear.  When  asked  whether  he  saw 
any  ballots  which  had  been  scratched,  he  answers:  "I  did,  but  I  don't  know  that 
'there  was  any  on  Congressmen."  However,  he  was  the  commissioner  who  strung  the 
ballots,  so  that  he  was  not  required  to  read  them  all.  He  says,  though,  that  he  be- 
lieves the  returns  made  by  the  election  officers  at  his  precinct  to  have  been  con  ect. 

J.  D.  Brookover,  the  other  Democratic  commissioner,  testifies  at  page  367.  Throngh 
his  deposition  a  glimpse  may  be  caught  of  the  pressure  under  which  these  election 
officers  ha<l  been  placed  after  it  began  to  seem  as  though  the  result  of  the  election 
would  turn  on  the  question  whether  their  evidence  would  overthrow  that  of  the  fal- 
sified ballots.  When  the  witness  m&de  an  affidavit  stating  the  truth,  as  he  under- 
stood the  facts,  one  of  his  influential  party  friends  addressed  to  him  the  remark: 
"  Damn  such  a  man  as  you  are,  for  going  back  on  his  party  as  you  have."  When, 
with  such  a  pressure  upon  them,  these  election  officers  come  forward  and  give  evi- 
dence in  favor  of  the  contestant,  no  doubt  can  remain  of  the  truthfulness  of  their 
statements. 

Brookover  testifies  that  aboxit  half  of  the  time  during  the  count  he  took  the  ballots 
from  the  box,  unfolded  and  inspected  them,  and  handed  them  to  Starkey,  who  called 
the  names  off  to  the  clerks,  and  then  passed  them  to  Fisher,  who  strung  them.  Part 
of  the  time  Starkey  took  the  ballots  from  the  box,  inspected  them,  and  tianded  them 
to  the  witness,  who  read  th  •  names  to  the  clerks  and  handed  them  to  Fisher.  Either 
Brookover  or  Starkey  read  off  to  the  clerks  all  of  the  ballots  except  five  or  six,  which 
were  read  by  Fisher.  While  they  worked  at  night  the  light  was  at  all  times  sufficient 
for  them  to  see  the  names  on  the  tickets  distinctly.  There  was  one  Republican  ballot 
with  the  contestant's  name  erased  and  the  contestee's  wr'tten  upon  it.  He  believes 
that  the  returns  made  from  the  precinct  were  correct.  When  asked  whether  it  was 
possible  that  there  could  have  been  ten  or  twelve  erasures  of  the  contestant's  name 
from  Republican  tickets  without  his  seeing  them,  he  says:  "I  don't  think  it  j)OSAife?e; 
I  don't  think  there  could  have  been  that  irany  and  my  attenion  not  called  to  it." 

Samson  Starkey,  the  Republican  commissioner,  corroborates  (340)  the  testimony  of 
Mr.  Brookover  with  reference  to  the  method  of  the  count,  the  sufficiency  of  the  light, 
and  the  fact  that  only  one  Republican  ticket  had  the  contestant's  name  erased.  He 
says  that  he  gave  his  entire  attention  to  the  counting  and  reading  of  the  ballots,  and 
that  it  is  impossible  that  ten  or  eleven  erasures  of  the  contestant's  na.ne  from  Repub- 
lican tickets  could  have  escaped  his  notice. 

The  two  clerks,  Earl  (338)  and  Belch  (339),  both  Democrats,  testify  substantially 
to  the  same  efiect,  so  far  as  their  opportunities  lor  observation  went.  Earl  stating 
that  one  ballot  was  scratched  for  each  of  the  Congressional  candidates,  and  Belch 
not  remembering  distinctly,  but  believing  that  there  were  "two  or  three  or  four" 
ballots  with  the  contestant's  name  scratched,  none  of  which,  however,  he  saw.     Earl 

H.  Mis.  137 4 


60  ATKINSON   VS.    PENDLETON. 

thought  the  light  was  good  nntll  one  of  their  lamps  went  ont,  after  which,  until 
daylight,  he  could  not  see  any  too  well.  Belch  could  see  plainly  all  the  time.  Both 
of  these  witnesses  were  called  by  the  contestee  (951,  952)  to  testify  that,  in  some  in- 
stances, the  commissioners,  instead  of  calling  every  name  upon  the  ballots,  called 
them  as  "straight  Democratic"  or  "  straight  Republican,"  and  that  when  Brookover 
overlooked  a  scratch  upon  one  ticket,  though  not  apparently  of  the  name  of  a  Con- 
gressional candidate,  one  Wyatt,  a  by-stander,  called  his  attention  to  it.  Wya^t  also 
testifies  to  these  facts  (953).  So  far  from  weakening,  this  evidence  strengthens  the 
case  made  for  the  contestant  by  showing  that  the  by-standers  were  adding  their  vigi- 
lance to  that  of  the  election  officers,  and  were  quick  to  observe  a  mistake,  and  by 
showing  also  that,  notwithstanding  the  presence  of  Democratic  commissioners,  clerks, 
and  by-stauders  the  contestee  has  failed  to  produce  any  evidence  whatever  of  the 
making  of  more  than  one  mistake,  which  was  at  once  corrected,  or  of  the  presence  of 
any  scratched  ballots  except  those  which  were  observed  and  properly  classified  by 
the  election  officers.  The  ballots  from  this  precinct,  too,  were  carefully  and  safely 
delivered  to  the  clerk  of  the  county  court  (370). 

If  these  ballots  had  really  been  scratched  before  they  were  deposited  in  the  ballot- 
box,  not  only  might  the  contestee  have  called  the  by-standers  at  Martin's  School- 
House  and  proved  the  fact  by  them,  but  there  was  open  to  him  one  complete  and  sat- 
isfactory method  of  proving  the  fact  of  the  scratching  both  there  and  at  Archer's 
Fork.  The  tickets  which  were  found,  when  produced  before  the  county  court,  to 
have  these  scratches  upon  them  were  Republican  tickets,  and  presumably  voted  by 
Republicans,  which  would  have  gone  that  far  toward  identifying  the  persons  who 
voted  them.  It  is  not  to  be  presumed  that  the  twenty-four  voters  who  must  have 
voted  the  ballots,  if  they  were  voted  at  all,  and  whoby  the  fact  of  scratching  expressed 
their  desire  for  the  contestant's  defeat,  would  through  pusillanimity  or  from  any 
other  motive,  observe  a  unanimous  silence  through  all  the  incidents  which  followed 
this  election.  Here  are  charges  and  proofs  of  fraud,  suspicion  of  crime  attaching  to 
their  fellow-citizens,  the  defeat  of  the  candidate  of  their  choice  imminent,  and  all  be- 
cause they  do  not  come  forward  and  disclose  the  secret  of  their  ballots.  Men  may, 
and  often  do,  prefer  to  keep  to  themselves  the  names  of  the  persons  for  whom  they 
have  voted,  especially  when  they  have  scratched  their  party  ticket.  But  this  objec- 
tion to  making  known  how  they  vote  is  generally  prompted  rather  by  the  desire  to 
avoid  petty  annoyances  and  criticisms  than  by  the  fear  of  any  serious  consequences, 
and  these  reasons  would  readily  yield  when  they  would  consider  the  much  more  seri- 
ous consequences  of  their  silence.  But  not  one  of  the  twenty-four  has  been  found. 
And  the  contestee  was  in  search  of  them,  too,  for  we  have  the  important  fact  devel- 
oped that  Mr.  A.  L.  Moouey  told  Hon,  Aaron  Morgan  that  he  was  going  to  vote  for 
Mr.  Pendleton  and  work  for  him  at  Martin's  School-House,  and  afterwards  that  he 
had  voted  for  hira  and  worked  for  him,  "but  had  not  got  very  much  done  for  him." 
(940.)  But  Mr.  Mooney's  own  ballot  is  accouftted  for  by  the  one  Republican  vote 
which  was  found  to  be  scratched  and  which  was  not  counted  by  the  ilection  officers, 
and  Mr.  Mooney  seems  to  do  his  testifying  as  the  Hon.  Aaron  Morgan  seems  to  do  his 
penmanship  (941)  that  is  to  say,  vicariously,  for  he  does  not  come  upon  the  witness 
stand  to  testify  what  the  little  was  that  he  had  got  done  for  the  contestee. 

The  ballots  from  Martin's  School  House  were  delivered  to  the  deputy  clerk  of  the 
county  court  on  the  morning  of  the  8th  day  of  November  (336,  926),  and  those  from 
Archer's  Fork  were  delivered  to  the  clerk  on  the  7th  day  of  November,  in  the  even- 
ing (390).  It  does  not  appear  on  what  days  the  ballots  from  the  other  precincts 
throughout  the  county  were  brought  in,  but  until  all  had  been  received  those  which 
had  come  in  were  placed  in  a  wooden  box,  described  as  an  "  Arbuckle's  coffee  box," 
and  allowed  to  remain  in  the  clerk's  office,  under  the  clerk's  desk,  until  all  had  come 
in,  and  the  box  was  then  moved  into  the  vault  (926).  The  box  does  not  appear  to 
have  been  nailed  up  during  the  interval  between  the  receipt  of  the  ballots  by  the 
clerk  on  the  7th  and  8th  days  of  November,  and  the  production  of  the  box  in  court 
on  the  12th  day  of  November. 

On  the  12th  day  of  November  the  county  court  met  to  canvas  the  returns  from  the 
various  voting  places  in  the  county  (433).  The  commissioners  who  composed  the 
court  were  Benjamin  Earnshaw,  T.  P.  Horner,  and  David  Dulaney  (426).  The  clerk 
was  John  C.  McEldowney,  and  his  deputy  was  R.  E.  L.  Snodgrass  (425,  426).  All  of 
these  men  were  De-nocrats  (411,  415).  The  ballots,  poll-books,  and  certificates  from 
Martin's  School  House  had  been  returned  in  a  paper  sack,  and  those  from  Archer's 
Fork  in  another  (426,  434).  On  the  12th  day  of  November  these  two  sacks  were 
opened  in  order  to  permit  the  county  court  to  obtain  access  to  the  poll-books  and  cer- 
tificates (426,  434),  and  these  sacks  were  not  sealed  up  again  until  after  the  recount 
had  been  completed,  but  were  replaced  in  the  box  unsealed  (426),  and  so  remained 
from  the  12tli  day  of  November  until  the  26th  day  of  November,  when  the  ballots 
from  Martin's  School  House  were  examined  by  the  county  court,  and  the  27th  day 
when  those  from  Archer's  Fork  were  examined  (434). 

There  are  two  questions  of  fact  which  have  engaged  the  attention  of  the  witnesses 


ATKINSON    VS.    PENDLETON.  51 

•who  testified  upon  either  side  with  regard  to  the  custody  of  these  hallots.  The  wit- 
nesses for  the  contestant  claim  that  when  the  ballots  from  these  two  precincts  were 
produced  before  the  county  court  to  be  counted,  tbey  were  in  confusion  and  appeared 
to  have  been  disturbed,  while  the  witnesses  for  the  coutestee  claim  tbat  they  were  in 
good  condition.  The  witnesses  for  the  contestant  also  claim  that  during  the  recesses 
of  the  court  the  ballots  were  not  replaced  in  the  vault,  as  they  should  have  been, 
but  were  allowed  to  lie  in  an  open  box  in  the  clerk's  office,  accessible  to  every  person 
who  might  enter  (411,415,420).  The  witnesses  for  the  coutestee,  on  the  other  hand, 
insist  that  whenever  the  court  adjourned  the  wooden  box  containing  the  ballots  was 
nailed  up,  pieces  of  wood  being  nailed  across  it,  and  was  deposited  in  the  vault  (926, 
927,  425). 

Another  subject  of  controversy  among  the  witnesses  was  the  character  of  the 
scratching  that  appeared  upon  the  ballots  from  these  two  precincts.  There  is  no 
question  that  the  scratching  was  of  a  very  distinct  and  perceptible  character  (948, 
4:54),  and  this  makes  it  still  more  improbable  that  so  many  and  such  marks  should 
have  escaped  the  attention  of  the  election  officers.  But  the  witnesses  for  the  con- 
testant claim  that  th^  ballots  from  Martin's  School-House  had  been  marked  with  a 
very  wide  black  mark,  made  with  a  soft  lead- pencil,  and  that  wherever,  in  addition 
to  the  erasure  of  the  contestant's  name,  the  name  of  the  coutestee  had  been  written 
upon  the  ballot,  the  writing  seemed  to  have  been  done  with  a  similar  or  the  same 
pencil,  and  that  the  handwriting  differed,  as  well  as  the  character  of  the  pencil 
marks,  from  the  other  writing^and  marks  which  in  some  instances  appeared  upon  the 
same  ballot  (434).  The  witnesses  upon  the  other  side  insist  that  the  writing  upon 
the  tickets  was  not  uniform  (946,  947). 

The  county  court  began  its  sessions  for  the  canvassing  of  the  vote  on  November 
12th  and  did  not  conclude  its  labors  until  November  30  (442).  It  is  not  to  be  inferred, 
however,  that  it  labored  continuously,  day  after  day,  upon  the  recount.  On  the  con- 
trary, the  counting  of  the  ballots  wa&  protracted,  for  no  apparent  reason,  from  day 
to  day,  and  when  other  resources  failed,  a  curious  and  suspicious  scheme  for  post- 
poning the  conclusion  of  the  count  was  resorted  to.  On  the  2l8t  day  of  November 
(421),  Charles  E.  Wells  and  U.  N.  Arnett,  from  Marion  County,  were  in  the  town  of 
New  Martinsville,  where  the  court  was  m  session,  and  Mr.  Earnshaw,  the  president, 
was  very  late  in  returning  to  the  court-room  after  the  noon  adjournment  (415).  Upon 
coming  into  court,  Mr.  Earnshaw  produced  a  telegram  purporting  to  be  signed  by 
Frank  J.  Black,  a  citizen  of  Burton  (415),  notifying  Earnshaw  that  his  wife  was 
very  sick.  It  seems  that  Wells  and  Arnett  had  left  town  upon  the  2  o'clock  train 
(420),  and  Wells  had  sent  from  Moundsville,  in  Black's  name,  this  alarming  message 
to  Mr.  Earnshaw  (363). .  Earnshaw  thereupon  left,  and  the  recount  was  delayed 
some  two  or  three  days  tintil  his  return  (420).  As  a  matter  of  fact.  Black  had  neither 
sent  the  telegram  himself  nor  authorized  it  to  be  sent,  and  knew  nothing  of  it  until 
Wells  himself  told  him,  some  days  later,  tbat  he  had  used  Black's  name  to  such  a 
message  (364).  Neither  was  Earnshaw's  wife  sick  at  the  time,  but  on  the  contrary 
attended  a  merry-making  on  the  22d  and  seemed  to  be  enjoying  herself  (363). 

That  this  whole  scheme  was  carried  through  by  pre-arrangement  with  Earnshaw 
himself  is  manifset  from  Earnshaw's  conduct  after  he  left  New  Martinsville.  He 
went  to  Burton,  it  is  true,  but  instead  of  hastening  home,  as  would  have  been  natural 
if  he  had  supposed  his  wife  to  be  ill,  and  as  he  had  hastened  from  New  Martinsville, 
he  loitered  around  Burton  during  the  forenoon  and  then  went  leisurely  off  toward 
his  home  in  the  country  (366).  Now  all  this  would  be  curious  enough  by  itself,  but 
when  it  is  taken  in  connection  with  Mr.  Earnshaw's  explanation  it  becomes  little  less 
than  astounding.  He  says  (944)  that  Wells  was  in  New  Martinsville,  and  had  busi- 
ness with  him,  wholly  unconnected  with  the  election  ;  that  he  received  the  telegram 
already  referred  to,  and  knew  that  Charles  E.  Wells  sent  it.  Then,  drawing  a  nice  dis- 
tinction, he  says  that  the  telegram  was  not  sent  for  the  purpose  of  interfering  with 
the  recount  at  aW,  ^^ further  than  it  necessarily  delai/ed  the  recount"  (9i4).  It  may  be 
taken  as  admitted,  therefore,  that  the  purpose  of  all  this  was  to  delay  the  recounting 
of  the  votes,  and  the  ballots  from  Martin's  School-house  and  Archer's  Fork  were  not 
counted  until  after  this  delay  had  occurred. 

It  is  not  necessary  to  the  case  which  has  been  made  for  the  contestant  that  the 
committee  shall  find  either  that  the  ballots  showed  uniformity  in  the  marking  of 
them  or  that  they  were  carelessly  allowed  to  remain  in  the  office  of  the  clerk  instead 
of  in  the  vault ;  nor  is  it  even  necessary  for  the  committee  to  conclude  that  the  per- 
sons who  brought  about  the  delay  in  the  recount  by  so  peculiar  a  scheme  were  directly 
instrumental  in  altering  the  faces  of  the  ballots.  These  circumstances  are  certainly 
sufficient  to  raise  a  suspicion  that  foul  play  of  some  kind  was  afoot.  The  evidence 
of  these  scratched  ballots  must  be  rejected,  however,  if  not  for  these  reasons,  then 
for  another  and  entirely  sufficient  one.  Let  it  bo  assumed  that  from  the  8th  day  of 
November  until  the  30t.li  day  of  that  month  the  ballots  in  question  were  kept  in  the 
vault  of  the  clerk's  office,  except  while  they  were  in  the  court-room  in  the  presence  of 
the  court.     Quis  custodet  oustodest    Who  looked  after  the  vault  ?    Mr,  K.  E.  L.  Sued- 


52  ATKINSON   VS.   PENDLETON. 

grasstellsns  aa  much  as  we  need  wish  to  know  about  that  matter.  After  describing 
the  external  fasteniugs  of  doors  and  shutters,  he  says  that  the  inside  door  was  fastened 
wi  til  a  bolt  and  the  outside  by  a  combination  lock;  that  he  himself,  John  C.  Mc- 
Eldowuey,  E.  B.  Snodgrass,  Frank  D.  Young,  and  T.  B.  Jacob  are  all  acquainted 
with  the  combination  (927).  Mr.  McEldowncy  says  that  the  combination  was  not 
only  known  to  these  persons,  but  also  to  many  others,  and  that  he  did  not  keep  the 
vault  as  a  security  against  burglars,  but  as  a  fire-proof  vault  only  (427). 

It  may  be  inferred  from  this  that  the  keeping  of  the  ballots  in  the  vault,  of  which 
so  much  is  made  in  tlie  evidence  for  the  contestoe,  was  not  so  very  much  better  than 
the  keeping  of  them  in  the  more  commonly  used  portion  of  the  clerk's  office.  Indeed, 
the  vault  seems  to  have  been  a  place  of  safe  custody  not  only  for  ballots  but  also  for 
beer,  and  when  the  clerk  and  his  friends  were  spending  a  pleasant  evening  together, 
between  the  sessions  of  the  court,  they  went  into  the  vault  with  pieces  of  lighted 
paper  to  look  for  the  beer  bottles  (937).  The  point,  however,  that  I  wish  to  bring 
out,  is  that  during  all  the  time  from  the  7th  and  8th  days  of  November,  when  the 
ballots  in  question  were  delivered  np  by  the  election  officers,  R.  E.  L.  Snodgrass,  the 
depnty  clerk,  had  free  access  to  them  at  all  hours  of  the  day  and  night,  and  this 
whether  they  were  in  the  clerk's  office  or  in  the  vault.  When  it  is  considered  that 
the  unanimous  testimony  of  all  the  election  officers  Irom  these  two  precincts  con- 
curs in  proving  that  the  ballots  were  not  scratched  when  they  were  voted  and  first 
counted,  it  becomes  of  grave  importance  to  inquire  what  manner  of  persona  had  access 
to  these  ballots  before  the  county  court  proceeded  to  Gount  them. 

The  case  of  Kline  v.  Verree  (2  Congressional  Election  Cases,  3H1),  will  be  found  in- 
structive ui)on  this  point.  In  that  case  the  contestant  claimed  that  the  election  officers 
in  various  precincts  had  made  mistakes  in  the  counting,  and  that  their  returns  were, 
therefore,  inaccurate.  The  ballot-boxes  were  produced,  and  the  ballots  recounted, 
and  it  thereupon  appeared  that  th«i  ballots  showed  a  different  result  from  that  which 
had  been  returned  by  the  election  officers.  With  regard  to  one  precinct  (page  388), 
it  was  claimed  that  the  election  officers  had  overlooked  certain  "  stickers "  and  b,- 
n)istake  had  counted  as  full  ballots,  ballots  which  had  really  been  altered  by  means 
of  these  stickers.  Upon  an  inspection  of  the  ballots  it  was  perceived  that  the  stick- 
ers were  upon  yellow  paper  which  had  been  pasted  upon  white  ballots,  making  a 
most  striking  contrast.  The  committee  in  its  report  pertinently  remarks :  "None 
but  a  blind  man  could  make  the  mistake  of  overlooking  these  stickers,  for  none  other 
could  fail  to  see  them."  The  same  remark  might  be  applied  to  the  pencil  marks 
upon  the  ballots  which  are  here  in  question.  But  I  have  referred  to  the  case  mainly 
for  another  purpose.  When  the  discrepancy  was  discovered  between  the  returns 
made  by  the  election  officers  and  the  votes  shown  by  the  ballots  as  produced,  inquiry 
was  naturally  made  into  the  custody  of  the  ballots  during  the  interval  between  the 
two  counts.  The  ballot-box  from  the  third  division  of  the  Eleventh  ward  (page  387) 
had  been  left  in  the  custody  of  Alderman  Williams.  It  had  been  sealed  up,  and  when 
produced  was  apparently  in  the  same  condition,  so  far  as  the  seals  were  concerned, 
as  when  it  had  been  delivered  into  the  custody  of  the  alderman.  But  the  box  ha«i 
been  kept  in  the  office  of  the  alderman,  upon  a  shelf,  and  this  office  was  a  place  ol' 
frequent  resort,  especially  by  a  constable  named  McKinney.  While  it  appeared  that 
McKinney  had  .carried  this  box  from  one  place  to  another,  and  had  at  one  time  in- 
trusted it  to  another  man,  it  was  not  shown  that  McKinney  had  tampered  with  the 
ballot-box  in  any  respect,  but  after  he  had  been  shown  to  have  made  the  office  a 
place  of  resort  into  which  he  could  enter  during  the  alderman's  absence,  the  commit- 
tee came  to  a  conclusion  with  regard  to  these  ballots,  which  they  exjiressed  as  fol- 
lows: 

"  The  character  of  McKinney  was  attacked,  and  it  appeared  that  he  had  been  con- 
A'icted  of  extortion  or  obtaining  vioney  hij  fraud,  and  had  been  pardoned  by  the  gov- 
ernor, and  since  elected  constable  of  the  ward.  Alderman  Williams  testified  that  he 
would  not  believe  him  under  oath.  If  his  character  is  as  bad  as  claimed  by  the  con- 
testant, the  committee  believe  him  to  be  a  very  unsafe  person  to  keep  the  company 
of  ballot-boxes  for  three  months,  or  be  intrnsted  with  them  as  he  was  by  Alderman 
Williams,  to  carry  to  the  magistrate's  office,  and  w^ould  be  a  very  suitable  person  to 
do  or  connive  at  the  very  thing  he  testifies  was  done.  The  committee  conld,  however, 
place  no  confidence  in  the  integrity  of  a  ballot-box  whicii  had  been  in  such  company 
and  keeping  for  three  months,  and  when  oi)etied  was  found  not  to  agree  with  the 
sworn  returns  received  at  the  time  of  the  election.  By  this  recount  the  contestant 
gained  17  votes.  As  the  entire  recount  gives  him  but  8  majority,  it  is  obvious  that 
without  this  correction  the  result  can  not  be  changed.  The  committee  think  it 
would  be  most  unsafe  to  contest  the  returns  by  such  testimony." 

Let  us  inquire,  therefore,  what  sort  of  a  fuan  it  was  who  was  keeping  company 
with  these  ballots  for  three  weeks,  long  enough  certainly  for  any  purpose  of  (rand 
to  l>e  accomplished.  We  need  look  no  further  than  the  testimony  in  this  cause  to 
ascertain  that  Snodgrass,  if  he  hfid  not  been,  in  the  language  used  by  the  committee 
in  the  case  just  cited,  "convicted  of  extortion  and  obtaining  money  by  fraud,"  was 


ATKINSON   VS.    PENDLETON.  .       53 

saved  from  the  commission  of  such  a  crime  not  by  his  conscience,  but  by  the  refusal 
of  his  intended  victims  to  be  defrauded.  Shortly  after  the  recount  had  been  con- 
cluded, and  while  there  was  yet  much  excitement  in  the  public  mind,  over  what  was 
believed  to  have  been  a  fraud,  this  precious  deputy  opened  negotiations  with  Mr. 
Cowden,  the  chairman  of  the  republican  State  executive  committeefor  West  Virginia, 
intimating  that  he  knew  who  bad  scratched  the  ballots  from  Martin's  School  House 
and  Archer's  Fork,  and  that  be  was  ready  to  disclose  what  he  knew  upon  the  pay- 
ment of  a  sufficient  consideration.  Upon  this  intimation,  Mr.  Cowden,  with  one  or 
two  confidential  friends,  had  an  interview  with  Mr.  Snodgrass,  in  which  the  latter 
gave  it  to  be  understood  that  he  had  this  important  information,  and  was  ready  to 
sell  it. 

It  is  not  necessary  to  follow  the  details  of  the  negotiation,  which  fell  through  os- 
tensibly because  the  price  asked  vras  too  high,  but  really,  I  suppose,  because  Mr. 
Cowden  could  obtain  no  assurance  that  Snodgrass  was  to  be  trusted,  to  comply  with 
his  part  of  any  agreement  which  might  be  entered  into  ^393,  414,  430).  But  Snod- 
grass has  gone  too  far.  The  fact  that  he  had  been  negotiating  could  not  be  kept  se- 
cret. It  was  necessary  for  him  to  devise  some  explanation,  and  to  offer  some  reason 
why  he  had  been  in  consultation  with  the  Republicans.  He  not  only  devised  the  ex- 
planation, but  testified  to  it  and  coolly  presents  in  his  testimony  a  picture  of  himself 
which  would  scarcely  be  more  infamous  if  he  had  confessed  to  have  altered  the  bal- 
lots. His  explanation  is  that  he  had  arranged  with  one  Grail  to  play  a  trick  upon 
Mclntire  and  Cowden,  and  trick  them  out  of  their  money.  In  making  the  explana- 
tion he  thinks,  apparently,  that  he  has  satisfied  the  requirements  of  any  person's  con- 
science when  he  has  explained  that  he  did  not  tell  Mr.  Mclntire  or  Mr.  Cowden  that 
he  knew  anything  about  the  ticket  scratching,  but  only  said  to  them  that  he  would 
tell  them,  for  $3,000  in  cash,  all  he  Tcnew  about  the  ticket  scratching  (931,  933).  He 
adds  that  he  did  not  know  at  that  time  and  does  not  know  at  this  time  anything  what- 
ever about  the  ticket  scratching  (933).  He  said  to  them,  though,  that  in  case  he  made 
a  statement  in  relation  to  the  matter,  he  would  furnish  circumstantial  evidence  that 
such  statement,  whatever  it  might  be,  was  true  (933).  On  cross-examination  he  was 
asked  what  his  object  was  in  telling  Mr.  Cowden  that  he  was  getting  $60  a  month, 
and  that  he  might  be  discharged  if  he  should  tell  all  he  knew  about  the  ticljet  scratch- 
ing. The  portion  of  his  deposition  which  immediately  follows  presents  the  whole  man 
in  his  naked  infamy : 

"A.  15.  My  object  was,  if  posslble,'to  gethim  to  advance  th6$3,000  to  me  for  telling 
what  I  knew  about  the  ticket  scratching^ 

"Q.  16.  Yet  at  that  time  and  now  you  say  you  knew  nothing  about  the  ticket 
scratching.  Is  not  that  so? — A.  16.  Yes,  sirf  I  said  that  I  knew  nothing  about  the 
ticket  scratching. 

"  Q.  17.  Then  your  intention  waste  deceive  Mr.  Cowden  to  get  the  $3,000,  or  what- 
ever sum  of  money  you  could,  and  give  him  nothing  in  return  ? — A.  17.  My  intention 
was,  as  I  said  before,  to  enter  into  a  written  contract,  signed  in  duplicate,  to  tell  all 
I  knew  about  the  ticket  scratching,  and  further,  I  intended  to  comply  with  the  con- 
ditions of  the  contract,  and  if  anybody  was  deceived  thereby  I  care  not. 

"  Q.  18.  But  did  you  intend  to  deceive  Mr.  Cowden  ? — A.  18.  I  thought  that  if  he 
was  foolish  enough  to  be  deceived  by  the  statement  I  had  made  him,  it  was  all  well 
and  good  so  far  as  I  was  concerned. 

"  Q.  19.  But  did  yon  not  intend  to  deceive  Mr.  Cowden  ? — A.  19.  It  was  my  inten- 
tion to  deceive  Mr,  Cowden  or  any  one  else  who  were  foolish  enough  to  be  deceived 
by  statements,  and  it  was  my  object  to  secure  the  $3,000  from  any  one  who  was  fool- 
ish enough  to  pay  it  to  me  for  telling  what  I  knew  about  the  matter." 

This  witness,  therefore,  shows  himself  to  have  been  willing  to  commit  the  crimeof 
obtaining  money  under  false  pretenses,  by  "extortion  or  obtaining  money  by  fraud," 
as  the  committee'put  it  in  Kline  t'.  Verree.  If  the  constable  in  that  case  was  for  that 
reason  considered  bad  company  for  the  ballots,  the  deputy  in  this  case  must  for  the 
same  reason  be  considered  equally  bad  company,  and  the  ballots  themselves,  to  which 
he  had  constant  access,  are  so  tainted  with  suspicion  as  to  make  them  worthless  as 
evidence  to. overthrow  the  sworn  returns  of  the  election  officers.  In  truth,  when  the 
matter  is  fairly  considered,  we  have  simply  the  oath  of  this  man  Snodgrass  against 
the  oath  of  all  the  election  officers  at  these  two  precincts.  For  we  only  know  by  his 
oath  that  he  really  did  not  know  anything  about  the  scratching  of  the  tickets,  and 
did  not  engage  in  the  scratching  himself. 

There  are  some  other  peculiar  circumstances  connected  with  this 
recount  not  spoken  of  in  the  brief  which  we  have  quoted. 

These  two  precincts  were  not  recounted  until  alter  the  president  of 
the  county  court  had  procured  an  adjournment  by  telegram  refeired  to 
in  the  evidence  and  brief,  known  to  him  to  be  false,  and  designedly 
used  by  him  to  deceive. 


54  ATKINSON   VS.    PENDLETON. 

This  telegram  was  by  him  shown  to  a  leading  Rei)ublican,  Mr.  Mcln- 
tyre,  engaged  in  watching  the  proceedings,  and  his  opinion  asked  about 
going  home.  The  judge  talked  quite  awhile  about  his  wife's  sickness 
and  appeared  to  be  much  affected.     (Record,  ps.  214,215.) 

This,  of  course,  was  for  a  purpose,  and  designed  to  deceive.  On  the 
same  day  this  judge  had  been  in  an  upper  room  of  a  hotel  in  the  town, 
iu  company  with  Wells,  the  sender  of  the  false  telegram,  and  of  Lee 
Siiodgrass,  the  deputy  clerk.     (Record  p.  224.) 

Up  to  this  time  the  plurality  for  Atkinson  had  not  been  ovejcome  and 
the  count  was  nearly  completed. 

Previously,  at  a  late  hour  of  the  night,  that  same  judge  had  entered 
the  vault  where  those  ballots  were  kept,  with  one  Grail  and  the  clerk 
of  the  court,  on  the  hunt,  as  he  says,  of  a  bottle  of  beer. 

Grail  was  staying  around  the  court  during  the  recount,  and  remain- 
ing after  the  work  of  the  day  was  over,  usually  pretty  drunk;  a  fit  tool 
for  dirty  work,  if  he  could  be  trusted,  and  this  a  fit  opportunity  to  find 
just  where  the  ballot-box  containing  the  ballots  was  located. 

But  Grail  didn't  sober  up.  Wells  and  Arnett  visit  the  town.  Judge 
Erushaw  and  Lee  Snodgrass  have  a  private  interview  with  them. 
Wells  leaves  town  and  sends  a  false  telegram  in  another  name,  by  pre- 
vious arrangement.  The  court  adjourns  for  two  or  three  days,  and 
then  comes  the  recount  with  the  extraordinary  result.  Ballots,  too, 
which  had  been  expressly  forbidden  to  be  resealed  at  the  beginning  of 
the  recount  by  the  same  judge,  over  the  protest  of  the  attorney  for  Mr. 
Atkinson,  who  had  asked  that  the  ballots  after  they  had  been  opened 
on  the  first  day  of  the  recount,  might  be  resealed  until  wanted  during 
the  recount. 

The  false  telegram,  sent  by  Wells  iu  the  name  of  Black,  was  dated 
November  21,  18S8.  The  recount  did  not  begin  again  until  November 
23  or  24. 

The  connection  of  Wells  and  Arnett  with  this  recount  is  shown  by 
another  telegram  sent  to  them  at  New  Martinsville,  November  24,  by 
which  it  appears  that  they  had  returned,  and  on  business  connected 
with  the  count. 

The  telegram  may  be  found  on  page  421  of  the  record,  and  is  as  fol- 
lows: 

Charlestox,  W.  Va.,  November  a4,  1888. 
To  C,  E.  Wells  or  W.  N.  Arxett,  New  Martinsville,  W.  Va.: 

St.  Clair  says  hi'  can  go  to  Wetzel  on  Monday  if  necessary.  Have  court  adjourn 
until  counsel  can  be  heard. 

McG. 

Thus  it  is  clearly  made  to  appear  that  Wells  and  Arnett  were  in  New 
Martinsville  on  business  connected  with  this  recount;  that  they  helped 
to  secure  an  adjournment  at  a  critical  time  bj'  deception,  giving  the 
publican  apparently  good  reason  therefor;  that  Judge  Erushaw  and 
the  deputy  clerk  were  in  consultation  with  them ;  that  previously  it 
took  three  persons,  including  the  judge,  to  hunt  for  one  bottle  of  beer 
in  the  ticket  vault,  and  finally  that  the  tickets  when  recounted  dis- 
closed the  change  heretofore  shown. 

Under  this  evidence  there  is  no  room  for  doubt  that  these  ballots 
were  fraudulently  changed  after  the  recount  commenced. 

They  were  not  safely  and  securely  kept  during  the  count  free  from 
opportunity'  to  tamper  with  them. 

Some  of  the  official  custodians  were  improper  persons,  as  is  demon' 
strated,  to  have  charge  of  them. 


ATKINSON   VS.    PENDLETON. 


55 


The  correctness  of  the  original  count  is  clearly  established  outside  of 
the  presumption  in  its  favor,  and  therefore  the  committee  adopt  the 
returns  as  a  correct  statement  of  the  vote  in  the  two  precincts  of  Wet- 
zel County,  and  hold  that  contestant  was  elected  by  a  plurality  of 
seven  votes  according  to  the  correct  returns. 

By  this  conclusion  the  burden  shifts,  and  it  now  devolves  upon  con- 
testee  to  establish  his  right  to  the  seat  which  he  occupies  by  affirmative 
evidence. 

This  he  seeks  to  do  by  charging  that  illegal  votes  were  cast  and 
counted  for  contestant  aufiicient  to  overcome  this  apparent  majority 
and  to  outnumber  the  illegal  votes  alleged  to  have  been  cast  and  counted 
for  contestee. 

The  committe  have  carefully  examined  the  evidence  in  the  record  on 
this  branch  of  the  case,  and  have  given  due  consideration  to  the  briefs 
and  oral  arguments,  and  have  reached  the  conclusion  following  : 

For  convenience  we  shall  follow  the  order  adopted  by  the  parties, 
keeping  up  the  numbers  as  we  find  them  in  the  briefs. 

We  find  that  the  following- named  voters  were  not  legally  qualified  to 
vote  at  the  places  where  they  voted,  and  that  they  voted  for  contestee : 


No. 

Xame. 

Remarks. 

4 

Clarence  Trn* .................................  ......     ..................  . 

10 

Calvin  Ashcraft. ....................... ......     ..  .     . .. . 

Do. 

11 

ISTewt  Wilt 

Do. 

1^ 

John  Fiirguson  .................... ....... . . 

Do. 

13 

Henry  Keestemeyer . ............................ .... 

Do 

1« 

John  Davis 

17 

Byron  Bates...' 

Do. 

19 

P.  H.  McConaughey 

Do. 

?.(i 

Win.  McKinley 

Do. 

38 

Joseph  Crawford.............. .. i..... . 

Do. 

38 

Robert  Dreamer...*.... ' 

Do. 

41 

John  C.  Clowson 

Do. 

43 

Smith  Marks 

Do. 

44 

John  Gallegan 

Do. 

45 

John  W.  Slunner 

Do. 

47 

John  Lodge 

Do. 

48 

Jacob  Mellbaugh. 

Do. 

49 

John  F.  Paugh 

Do. 

."iO 

Alvin  Cresswell 

Do. 

53 

A.  M.  Prettyman 

Do. 

54 

AllenHart 

Do. 

5fi 

Tbomaa  Brothers 

Do. 

58 

William  Kidd 

Do. 

59 

George  Kidd 

Do. 

60 

Inaac  Carpenter 

Do. 

fi2 

William  Kleives 

Do. 

fi4 

George  W.  Storm 

Do. 

65 

W.  A.  Delaplain 

Do. 

66 

Jack  Hamilton 

Do. 

67 

B.  K.  McMechen 

Do. 

68 

George  Baired,  jr , 

Do. 

70 

Joseph  Kress ... .          .            ..... 

Do. 

73 

Pat  Williams 

Do. 

76 

Lee  Minor 

Do. 

79 

Reuben  Wade 

Do. 

87 

Amos  James 

Do. 

89 

Lee  Ganite  .            .                             

Do. 

90 

Rev,  D.  C.  Weese 

Do. 

91 

Lloyd  Brown 

Do. 

92 

Sandy  Redman 

Do. 

93 

Homer  Griffin... ..      . 

Do. 

94 

G.A.RKuhn 

Do. 

105 

IsaacWoofter 

Bo 

106 

Jasper  Beals , 

Do. 

107 

Silas  Beals ... 

Bo. 

108 

Wm.  O.  Nitengale 

Do 

109 

Do. 

116 

Frederick  Aiishutz .              

Do. 

118 

Do. 

156 

H.  C.  Carrier : ^. 

Do. 

158 

Do. 

19« 

Je88«  Tuttle  ..„ „ 

Do. 

56  ATKINSON   VS.    PENDLETON. 


Ko. 

Name. 

Remarks. 

197 

John  M.  Roberta 

198 

J.  P.  Pope 

Do 

1»fl 

Judson  Brown .  ..  .  ... 

Do 

201 

John  Deberry 

Do. 

205 

J.  W.  Squires,  alias  Wyatt 

210 

Asbly  Diivis 

Do. 

213 

William  Weekly 

Do. 

215 

K.  L.  Kidd 

Do. 

«17 

Joseph  Kersey 

Do. 

219 

Henry  Beiiter 

Do. 

2?0 

Jacob  Wert zberger.. 

Do. 

221 

Henry  Co[)j)s 

Do. 

222 

Harry  IJoble 

Do. 

233 

Do. 

2?.5 

John  Roth .      . 

Do. 

2?,B 

Do. 

?27 

Newton  Johnson 

Do. 

228 

Do. 

229 

Do. 

234 

255 

Wm.  Klmniey 

Do. 

237 

Foreigner. 
Do. 

240 

John  Drosinslti . 

245 

249 

Thos.  Seaman 

Do. 

From  Nos.  95  to  104,  inclusive,  are  employes  of  the  State  asylum  for 
the  insane.  We  think  the  evidence  shows  that  they  have  fixed  their 
residence  there  and  were  entitled  to  vote. 

The  statute  which  declares  that  employes  of  the  State  shall  not 
thereby  become  residents  of  the  place  where  employed  does  not  prevent 
their  becoming  residents  if  they  so  elect.  The  presumption  of  non-resi- 
dence can  be  overcome  by  proof,  as  in  this  case. 

From  120  to  154,  inclusive,  the  voters  voted  at  Braxton  Court  House, 
and  it  is  insisted  that  the  territory  in  which  they  lived  had  not  been  le- 
gally annexed  to  that  voting  district.  An  attempt  had'been  made  to  so 
annex  it,  the  residents  had  so  voted  for  twelve  years,  and  we  do  not 
think  they  can  be  disfranchised  on  account  of  technical  neglect  of  the 
court,  after  years  of  acquiescence  in  what  was  supposed  to  be  a  legal 
order,  and  we  hold  the  votes  good. 

From  159  to  194,  inclusive,  it  is  alleged  that  the  voters  voted  out 
of  their  wards  in  the  city  of  Wheeling.  '  While  from  the  oral  evidence  in- 
troduced it  is  quite  evident  that  some  ten  or  twelve  of  these  voters 
voted  out  of  their  proper  wards,  the  committee  are  not  disposed  to 
include  them  in  the  list  of  illegal  voters,  for  the  reason  that  no  record 
evidence  was  introduced  as  to  ward  boundaries,  and  while  both  parties 
seemed  to  concede  the  competency  of  the  evidence  introduced,  we  do 
not  feel  like  going  into  the  question,  in  the  absence  of  that  better  evi- 
dence which  must  have  been  easily  accessible. 

In  country  precincts  common  repute  and  generally  acknowledged, 
boundaries  will  suffice,  but  the  boundaries  of  city  wards,  when  disputes 
arise  about  them,  ought  to  be  proven  by  better  evidence.  But  for  this 
technical  neglect  the  committee  would  be  obliged  to  find  at  least  ten 
illegal  votes  in  this  list.  According  to  our  finding  there  were  cast  and 
counted  for  contestee  seventy-six  illegal  votes,  as  above  named.  As  to 
most  of  these  votes  there  can  be  no  doubt  under  the  evidence.  As  to 
a  very  few  there  may  be  a  question  depending  upon  the  weight  at- 
tached to  the  evidence  of  difterent  witnesses. 

The  committee  have  given  the  presumption  in  favor  of  actual  resi- 
dence, as  against  a  claimed  intent  to  return  to  an  abandoned  residence 
when  the  intent  only  appears  by  the  act  of  voting. 


ATKINSON    VS.    PENDLETON.  57 

We  have  refused  to  reject  the  votes  of  actual  residents  even  when  it 
appears 'that  the  voter  had  beeu  in  the  habit  of  calling  a  former  resi- 
dence his  home. 

It  is  quite  clear  that  at  this  election  a  strong  eftbrt  was  made  to  bring 
back  to  the  State  all  absentees  who  had  formerly  resided  in  the  dis- 
trict, and  who  had  not  lived  abroad  long  enough  to  acquire  a  right  to 
vote. 

Some  election  officers  seem  to  have  adopted  the  erroneous  view  that 
a  man  retains  his  right  to  vote  in  his  old  home  until  he  acquires  a  right 
to  vote  elsewhere. 

Kesidence  may  be  acquired  in  a  day,  but  the  right  to  vote  may  de- 
pend on  the  length  of  residence.  There  are  several  other  illegal  votes 
in  the  list  challenged  by  contestant,  but  no  evidence  deemed  admis- 
sible by  the  committee  as  to  how  they  voted.  These  have  been  left  out 
of  consideration,  the  committee  adhering  to  the  rules  laid  down  in 
Smith  vs.  Jackson,  reported  at  this  session. 

The  vote,  No.  253 — that  of  Arthur  Bond — was  tendered  and  ought 
to  have  been  received,  as  he  was  clearly  a  legal  voter.  He  tendered  a 
vote  for  contestant  and  his  vote  should  be  counted  against  contestee. 

The  same  is  true  of  J^o.  252,  Silas  Friend. 

Allowing  these  two,  and  there  are  seventy-eight  votes  to  be  deducted 
from  contestee. 

Attorneys  for  contestee  in  their  brief  attack  153  votes  charged  to 
have  been  illegally  cast  for  contestant,  and  in  a  supplemental  brief,  21 
more  making  174  in  all. 

These  they  have  numbered  1  to  153  in  original  brief,  and  from  1  to  21 
in  supplemental  brief. 

Of  these,  Nos.  13  to  85,  inclusive,  are  like  those  attacked  by  con- 
testant at  Braxton  Court-House. 

The  attacked  votes  from  13  to  85  voted  at  Wellsburg,  where  they 
have  been  in  the  habit  of  voting  for  the  last  eleven  years.  And  it  is 
charged  that  they  lived  in  a  portion  of  the  town  not  belonging  to  the 
Wellsburg  voting,  precinct. 

The  facts  are  well  stated  in  contestant's  reply  brief  at  page  16. 

It  seems  that  before  the  year  1887  the  north  line  of  the  town  of  Wellsburgh  and 
the  district  of  the  same  name  have  been  coincident,  and  that  immediately  north 
of  the  town  and  in  Crosi?  Creek  district  lived  a  considerable  population  who  vote  at 
a  precinct  known  as  "Harvey's." 

lu  September,  1878,  the  circuit  court  of  the  county  entered  an  order  extending: 
the  corporate  limits  of  the  town  of  Wellsburgh  so  as  to  include  the  voting  precinct  at 
Harvey's,  and  so  as  also  to  include  the  residences  of  those  7H  voters.     »     *     • 

The  voting  precinct  at  Harvey's  was  abolished  and  a  new  one  opened,  first  at  De- 
venney's  and  then  at  Lazarville,  before  the  general  election  of  1878.  This  change  was 
made  because  it  was  the  understanding  that  the  voters  who  resided  within  the  re- 
cently included  territory  would  vote  m  the  W^ellsburgh  district,  and  the  old  voting 
place  needed  not  therefore  to  be  retained  for  their  couveuience,  and  so  from  that  time 
for  eleven  years  the  voters  and  the  county  authorities  have  treated  the  region  in- 
cluded in  the  town  as  being  also  a  part  of  the  district  of  Wellsburgh.  The  persons  re- 
siding in  this  region  have  continuously  and  without  objection  voted  in  Wellsburgh. 

Officers  were  appointed  from  persons  residing  in  this  territory  re- 
quired by  law  to  be  residents  of  Wellsburgh  district. 

In  August,  1878,  the  county  court  established  by  an  order  of  record 
a  new  precinct  "in  lieu  of  Harvey's,  which  is  now  within  the  boundaries 
of  the  district  of  Wellsburgh,"  thus  recognizing  this  territory  as  being 
within  Wellsburgh  district. 

It  is  not  necessary  to  inquire  whether  all  the  forms  of  law  have  been 
complied  with  to  take  this  territory  into  Wellsburgh  district. 

The  court  and  the  people  recognized  the  fact  j  it  was  accepted  as 


58 


ATKINSON   VS.    PENDLETON. 


something  accomplisbed,  and  the  addition  has  been  accomplished  as  a 
matter  of  fact. 

Voters  are  not  to  be  disfranchised  under  such  circumstances  any  more 
than  the  acts  of  de  facto  officers  are  to  be  held  invalid  in  collateral 
proceedings.  The  committ«^e  hold  that  thcvse  votes  were  legally  cast, 
and  do  not  enter  upon  any  investigation  of  the  evidence  as  to  who  got 
the  benefit  of  them. 

The  following  votes  cast  for  contestant  are  held  illegal : 

Numbers  as  in  contestee's  brief. 


No. 

Name. 

Eemarks. 

T 

Frank  Davis  .................... . .. ......... 

8fi 

W,  H.  H.  Smith 

Non-resident. 

88 

Do. 

90 

Do. 

Alfred  Craft 

Do. 

«*> 

C.W.Wallace 

Do. 

98 

M.  Pratt 

Do. 

100 

Do. 

10? 

Do. 

103 

Da 

106 

Dou 

107 

Pan  per. 

116 

117 

Do. 

1?1 

All  Ratclitt' 

Do. 

n? 

Gei)r{ce  Batton 

Minor. 

194 

Unsound  mind. 

1?6 

130 

134 

Convict. 

135 

M  inor. 

131 

Ertgar  Ewing .......................................... 

Non-resident. 

143 

Charles  Vennum  *........................................ .................. 

Do; 

144 

Do. 

149 

Do. 

151 

Do. 

153 

Jacob  Hall 

Do. 

SUPPLKMENTAL  BRIEF. 


CbarlesMo  Donald . . 

Sflathiiil  Crow 

James  Onnningham 
Frederick  Bowers.. 

G.  W.  Simms 

Melvin  Ault 

Lewis  Barnard , 


Non-resident. 
Pan  per. 
Non-resident. 
Un.sdund  raind. 
Non-rcsident. 
Do. 


Nos.  20  and  21  are  possibly  illegal  and  the  four  marked  with  an  as- 
terisk (*)  are  doubtful,  making  in  all  thirty-six  illegal  votes  cast  for 
contestant  including  these  doubtful  votes.  Josephus  Daniels,  Ko.  1,  in 
contestee's  brief,  claimed  to  be  a  minor,  conceded  by  contestant,  was 
not  a  minor  and  his  vote  was  legal.  The  concession  was  made  by 
overlooking  the  record  of  the  marriage  of  his  parents,  which  was  a  year 
earlier  than  the  oral  testimony  showed. 

The  result  shows  illegal  votes  cast — 

For  contestee 78 

For  contestant.... 36 

Contestant's  retumecl  majority - ..--..       7 

To  which  add 78 

85 
Subtract  illegal  votes  for  contestant 36 

Balance 49 


ATKINSON   VS.    PENDLETON.  69 

The  large  number  of  illegal  votes  makes  it  out  of  the  question  to  re- 
view the  evidence  touching  each  vote. 

The  briefs  filed  in  the  case  refer  to  the  pages  in  the  record  where  the 
evidence  may  be  found,  with  a  few  exceptions,  where  attorneys  seem  to 
have  overlooked  some  testimony  in  a  lew  instances  of  considerable  im- 
portance but  only  affecting  two  or  three  votes. 

The  coraijiittee  are  satisfied  that  a  careful  examination  of  the  evidence 
will  verify  the  accuracy  of  our  findings  and  fully  justify  this  report 
in  every  important  particular. 

In  accordance  with  these  findings,  the  committee  propose  the  follow- 
ing resolution,  and  recommend  its  adoption: 

Resolved,  That  George  W.  Atkinson  was  duly  elected  a  Representa- 
tive to  the  Fifty  first  Congress  from  the  First  Congressional  district  of 
West  Virginia  at  the  election  held  November  6,  1888,  instead  of  John 
O.  Pendleton,  and  that  said  George  W.  Atkinson  is  entitled  to  his  seat 
as  such  Representative. 


VIEWS  OF  THE  MINORITY. 


The  preponderance  of  the  evidence  indicates  that  the  recount  in 
Wetzel  County  properly  represented  the  votes  cast. 

Applying  to  the  testimony  the  law  as  laid  down  in  Smith  vs.  Jack- 
son, more  illegal  votes  are  shown  to  have  been  cast  for  contestant 
than  for  contescee,  and  contestee's  right  to  the  seat  is  accordingly  sus- 
tained. 

61 


VIEWS  OF  THE  MINORITY. 


Mr.  O'Ferrall,  from  the  Committee  on  Elections,  submitted  the  fol- 
lowing? as  the  views  of  the  minority : 

The  vote  in  the  First  Congressional  district  of  West  Virginia,  as  re- 
turned to  the  governor  of  that  State  and  upon  which  a  certificate  of 
election  was  issued  to  John  O.  Pendleton,  the  contestee,  was  as  follows : 

For  John  O.Pendleton,  contestee 19,261 

For  George  W.  Atkinson,  contestant 19,242 

Majority  for  Pendleton,  contestee 19 

Upon  the  face  of  the  returns,  it  will  be  observed,  Pendleton,  the  con- 
testee, was  elected  and  entitled  to  the  certificate  of  election,  and  has 
the  prima  facie  right  to  the  seat  he  holds. 

The  contestant  recognizing  the  fact  that  the  contestee  has  the  prima 
facia  right  bas  undertaken  to  show  his  superior  right  by  alleging  in  his 
notice  of  contest  that  many  persons  disqualified  under  the  constitution 
and  laws  of  West  Virginia  voted  for  the  contestee;  that  votes  tendered 
for  him,  the  contestant,  by  persons  duly  qualified  were  rejected  by  the 
officers  of  election  ;  and  that  in  the  county  of  Wetzel  fraud  was  com- 
mitted in  the  recount  of  the  ballots  of  2  precincts — Martin's  school- 
house  and  Archer's  Fork — by  which  he  lost  14  votes  at  the  one  and  10 
votes  at  the  other,  and  the  contestee  gained  2  votes. 

All  these  allegations  are  denied  in  the  answer  of  the  contestee ;  and 
he  makes  counter-charges  that  many  illegal  votes  were  cast  for  the  con- 
testant, and  that  legal  votes  tendered  for  him  were  rejected  by  the  offi- 
cers of  election. 

The  issues  then  are  plainly  and  distinctly  drawn  between  the  parties 
and  can  be  readily  understood. 

We  have  not  seen  the  report  of  the  majority  of  the  Committee  on 
Elections,  and  we  do  not  know  upon  what  ground  they  hold  that  the 
contestant  has  overcome  the  prima  facia  right  of  the  contestee  and  is 
entitled  to  the  seat  now  occupied  by  the  contestee  ;  all  we  know  is  that 
they  so  hold,  but  as  to  what  votes  they  exclude  or  count  on  either  side, 
or  what  their  conclusions  are  as  to  the  alleged  fraud  in  the  recount  in 
\yetzel  County  we  are  left  in  the  dark. 

We,  therefore,  are  compelled  to  present  our  views  sustaining  the  right 
of  the  contestee  to  the  seat  without  any  specific  reference  to  those  of 
the  majority. 

The  record  in  this  case  is  very  voluminous,  covering  more  than  1.500 
pages  of  printed  matter,  and  its  examination  has  required  much  time 
and  labor. 

Adopting  substantially  the  law  laid  down  in  the  recent  case  of  Smith 
vs.  Jackson,  so  far  as  it  applies  to  the  questions  involved  in  this  case, 
we  find,  in  our  opinion,  that  the  votes  cast  by  the  following-named  par- 
ties were  illegal,  and  that  they  were  cast  for  the  contestee  and  contest- 
ant, respectively,  as  follows: 

63 


64 


ATKINSON   VS.    PENDLETON. 


For  the  contestee : 

1.  Thomas  L.  George. 

2.  Smith  Marks. 

3.  John  F.  Paugh. 

4.  Thomas  Brothers. 

5.  Willinm  Kidd. 

6.  B.  K.  MoMechen. 

7.  (j-eorge  Baird,  jr. 

8.  Joseph  Kress. 

9.  Charles  Rogers. 
10.  Isaac  Woofter. 

For  the  contestant : 

1.  Cephas  Daniels. 

2.  Frank  Davis. 
.'•.  Joseph  Dillon. 

4.  J.  D.  Trumbo. 

5.  J.E.Dillon. 

6.  B.  F.  Friend. 

7.  G.W.  Roe. 

8.  J.  D.  Bradley. 

9.  Wilmer  Weaver. 

10.  Alfred  Craft. 

1 1.  Josiah  Wingrere. 

12.  Frank  Bowman. 

13.  Shoi-man  Kirk. 

14.  Frank  Justice. 

15.  John  Ammon. 

16.  William  Conners. 

17.  Georjje  Cox. 

18.  Michael  Kelley. 


IJ.  A.  F.  Wilmoth. 

12.  Frederick  Anshnrtz. 

13.  Thomjs  Marsh. 

14.  Frederick  W.  Bloome. 
16.  William  Law  Hooff. 

16.  J.  W.  Squires. 

17.  R.  E.  L.  Black. 

18.  William  Weekly. 

19.  Henry  Beuter. 

20.  Jacoh  WiltBberger. 


19.  C.B.Mills. 

20.  Samnel  Shrives. 

21.  J.  E.  Ramsey. 

22.  J.  J.  Rogers. 

23.  Harvey  Bee. 

24.  Andrew  Nicholson. 
25   Jessee  Seeders. 

26.  Al  Ratcliff. 

27.  George  Batton. 

28.  Jacob  Bencher. 

29.  W.  E.  Parrish. 

30.  Samnel  U.  Felton. 

31.  R.J.  Ta  lor. 

32.  Richard  Johnson. 

33.  Geor  ^e  Outright. 

34.  John  Carpenter. 

35.  Robert  Prettyman. 

36.  John  Wise. 


21.  Henry  Copps. 

22.  Harry  Noble. 

23.  Edward  Kreiter. 

24.  Thomas  Ullum. 

25.  Newton  Johnson. 

26.  Jerry  Farribee. 

27.  Henry  Fisher. 

28.  Patrick  Callahan. 


37.  Owen  McCoy. 
.%.  J.W.Grigsby. 

39.  Charles  Vennm. 

40.  Thomas  McCurdy. 

41.  J.  H.  Branson. 

42.  Joseph  Shaw. 

43.  Arthur  Wallace. 

44.  Samuel  Murray. 

45.  Bundy. 

46.  J.  C.  Connelly. 

47.  Jacob  Hull. 

48.  Dana  Hubbard. 

49.  Charles  McDonald. 

50.  Salatbiel  Crow. 

51.  Lindsay  Hart. 

52.  Henry  "Chambers. 

53.  Frederick  Bowers. 

54.  W.H.Lewis. 


These  voters  either  testified  themselves  for  whom  they  voted,  or  it 
was  shown  satisfactorily  that  they  were  pronounced  in  their  political 
opinions  at  the  time  of  the  election,  or  that  they  declared  on  the  day  of 
election  which  ticket  they  had  voted  or,  that  they  were  accompanied 
to  the  polls  by  well-known  party  workers,  or  that  their  votes  were 
challenged  by  the  supporters  of  one  and  their  right  to  vote  defended 
by  the  supporters  of  the  other  ticket,  or  like  circumstances,  raising  a 
strong  and  legal  presumption  as  to  the  ticket  they  voted  and  the  can- 
didate for  whom  they  voted. 

This  was  as  much  latitude  as  we  believe  the  law  as  heretofore  gener- 
ally Jidministered  in  this  House  would  allow,  and  in  our  opinion,  the 
extreme  limit  to  which  sound  public  policy,  the  security  of  elections, 
and  the  ends  of  justice  in  this  case,  as  well  as  all  others  in  this  or  future 
Congresses  will  permit. 

We  deduct  then  28  votes  from  the  contestee  and  54  votes  from  the 
contestant. 

Besides  these  illegal  votes  there  were  the  following : 

Close  1. 


1. 

2. 
3. 
4. 

6. 

John  Gilligan. 
John  Lodse. 
Jacob  Millbaugh. 
John  M.  Utler. 
Williaia  Klieves, 

6. 
7. 
8. 
9. 
10. 

W.  A.  Delaplane. 
Pat  WiUiams. 
Lee  Minor. 
Bode  Davis. 
John  Deberry. 

Class  2. 

IL 
12. 
13. 
14. 

William  Kimmey. 
Thomas  Seaman. 
Reuben  Wade. 
Lloyd  Brown. 

1. 
2. 
3. 
4. 
5. 
6. 
7. 

W.  H.H.Smith. 
William  Shriner. 
Samuel  Adams. 
Carter  Smith. 
James  Applegate. 
M   r.  Jones. 
William  Bates. 

8. 

9. 
10. 
11. 
12 
13. 
14. 

Edgar  Ewing. 
I.  H.  Fitch. 
Lloyd  L.Janes. 
Millard  Stout. 
William  A.  Moore. 
Hairison  Earp. 
Alonzo  Patterson. 

16. 
16. 

17. 
18. 
19. 
20. 

Nicholas  Veltz. 
Wilson  Hubbard. 
James  Cunningham 
Bud  Lay  ion. 
William  Myers. 
G.  W.  Simms. 

But  we  have  not  deducted  any  of  these  votes,  for  the  reason  that  the 
I)roof  as  to  bow  they  voted  does  not  come  within  the  rule  already  stated. 
As  to  class  1,  the  testimony  simply  shows  that  they  were  considered 


ATKINSON    VS.    PENDLETON.  G5 

or  reputed  to  be  Democrats,  but  when  they  had  expressed  themselves, 
or  what  opportunities  the  witnesses  had  for  ascertaining  their  senti- 
ments, does  not  appear.  As  to  class  2,  the  testimony  is  of  the  same 
character,  onlj'  differing  in  this  that  they  were  considered  or  reputed 
to  be  Kepublicans. 

In  a  country  like  this,  where  the  political  opinions  of  voters  are  con- 
stantly changing  and  new  issues  are  constantly  springing  up,  where 
party  votes  fluctuate  from  year  to  year  and  majorities  shift  from  one 
side  to  the  other,  where  each  of  the  two  great  dominant  parties  strain 
every  nerve  in  every  campaign  to  convert  those  who  have  been  in  the 
ranks  of  its  enemy  to  its  policy,  and  the  other  weaker  parties  seek  to 
gather  strength  from  both,  we  think  it  would  be  dangerous,  indeed, 
to  hold  that  a  Democrat  or  Eepublican  in  1884,  or  even  later,  was  pre- 
sumptively a  Democrat  or  Eepublican  in  1888.  Particularly  strong 
does  this  reasoning  apply,  in  our  opinion,  to  the  election  of  1888  In 
that  election  a  most  important  issue,  which  had  been  dormant  at  least 
for  years,  sprung  into  pre-eminent  prominence  and  became  at  once  the 
shibboleth  of  both  the  Democratic  and  Eepublican  parties.  In  many 
sections  former  party  lines  were  broken ;  Eepublican  communities  be- 
came Democratic,  and  vice  versa.  It  is  a  well- recognized  fact  that  it 
was  an  election  of  surprises  to  both  parties. 

But  without  pursuing  this  line  of  argument  further,  we  think  that 
the  authorities  are  almost  uniform  in  support  of  the  proposition  that 
mere  proof  that  a  voter  was  considered  or  reputed  to  belong  to  a  par- 
ticular party  is  not  admissible  to  show  how  he  voted  at  an  election,  and 
certainly  not  unless  it  appear  conclusively  no  better  evidence  could 
have  been  procured. 

We  find  further  that  the  following  duly-qualified  voters  tendered 
their  ballots  respectively  for  the  contestant  and  contestee  and  were  re- 
jected improperly  by  the  ofi&cers  of  the  election : 

For  contestant: 
1.  .Silas  Friend.  2.  Arthur  Bond. 

For  contestee: 

1.  Martin  Connera.  2.  B.  F.  Todd. 

We  think  these  votes  should  be  added  to  the  vote  of  the  contestant 
and  contestee  respectively ;  that  is,  two  votes  to  each. 

The  contestant  charged  in  his  notice  of  contest  that  35  votes  were 
cast  for  the  contestee  in  Holly  district,  in  the  county  of  Braxton,  which 
were  illegal. 

He  based  his  charge  upon  the  ground  that  in  1874  the  county  court 
of  Braxton  proceeded  to  change  the  boundaries  of  the  districts  and  to 
reform  them  without  giving  the  notice  required  by  the  statute,  and  that 
the  35  persons  named,  though  living  within  Holly  district  as  then 
formed,  by  the  order  of  the  county  court  were  not  legal  voters  in  that 
district. 

The  evidence  showed  that  these  voters  had  voted  at  former  elections 
in  Holly  district  and  many  of  them  for  years ;  that  their  votes  had  al- 
ways been  counted,  and  no  question  as  to  their  legality  had  ever  been 
raised. 

The  contestant  also  charged  that  35  votes  were  cast  in  the  city  of 
Wheeling  for  the  contestee  by  persons  at  voting  places  in  districts  or 
wards  in  which  they  did  not  reside.  No  record  evidence  as  to  the 
H.  Mis.  137 5 


GQ  ATKINSON    VS.    PENDLETON. 

boundaries  of  said  district  or  ward  was  offered ;  the  witnesses  differed 
as  to  the  limits  of  the  districts  and  wards,  and  there  appears  to  have 
been  much  doubt  as  to  the  lines.  The  voters  all  believed  they  were 
voting  in  the  proper  districts  and  wards,  and  the  judges  of  election  were 
of  the  same  opinion. 

Under  these  circumstances  we  do  not  think  these  voters  should  be 
disfranchised  or  that  the  contestee  should  lose  their  votes. 

The  contestee  charged  in  his  answer  that  73  votes  cast  for  the  con- 
testant in  Wellsburg  district,  in  the  county  of  Brooke,  were  illegal, 
and  insisted  they  should  be  deducted  from  the  vote  of  the  contestant. 

Upon  an  examination  we  found  that  all  of  these  voters  acted  under 
an  honest  belief  that  they  had  the  legal  right  to  vote  in  Wellsburg 
district;  that  this  had  been  the  usual  voting  place  oiall  the  voters  liv- 
ing within  the  boundaries  in  which  they  lived  for  years,  and  that  it  was 
another  case  of  confusion  and  misapprehension  as  to  lines  and  orders 
of  the  court,  and  under  this  state  of  facts  we  have  determined  that  it 
would  be  unjust  to  the  voters,  as  well  as  to  the  contestant,  to  deduct 
these  votes. 

We  come  now  to  the  consideration  of  the  recount  in  Wetzel  County. 

It  is  claimed  by  the  contestant  that  there  was  no  mistake  made  by 
the  ofl&cers  of  the  election  at  Martin's  School  House  and  Archer's  Fork 
in  their  count,  and  the  return  they  made,  but  that  the  ballots  were 
changed  after  they  had  been  returned  to  the  clerk's  office  of  the  county 
by  "  scratching"  his  name  on  24,  and  inserting  the  name  of  the  con- 
testee in  two  of  them,  so  that  he  lost  thereby  24  votes,  and  the  con- 
testee gained  2  votes. 

Of  course  the  officers  of  an  election,  unless  they  are  corrupt,  believe 
that  the  returns  they  make  is  correct  and  are  ready  and  willing  to  testify 
to  that  effect.  So  with  the  officers  at  these  precincts ;  they  testify,  and 
no  doubt  truthfully,  that  they  do  not  believe  they  made  any  mistake  or 
that  they  overlooked  any  "scratched"  ballots.  But  when  the  recount 
took  place  the  scratched  ballots  referred  to  were  found  by  the  county 
commissioners,  and  we  must  ascertain  as  best  we  can  whether  honest 
mistakes  were  made  by  the  precinct  officers  or  the  tickets  were  fraudu- 
lently "  scratched "  by  some  miscreant  after  they  reached  the  clerk's 
office. 

Let  us  then  examine  the  testimony. 

martin's  school  house. 

First.  The  count  was  long  and  tedious. 
A.  B.  Streight,  judge  (record,  335) : 

Ques.  When  was  the  conntingdone  ? — Ans.  Commenced  counting  right  away  after 
the  polls  closed ;  counted  that  night  until  abnut  2  o'clock;  then  quit  counting  and  got 
something  to  eat  and  took  us  a  sleep ;  commenced  next  morning ;  don't  know  exact 
time,  and  counted  on  until  done ;  only  quit  long  enough  to  get  something  to  eat. 

W.  H.  Parks,  clerk  (record  337) : 

Quest.  When  was  the  counting  done  ? — Ans.  We  commenced  counting  after  the 
polls  was  closed  in  the  evening,  and  counted  until  one  or  two  o'clock  that  night,  and 
adjourned  till  next  morning,  when  we  resumed  count  and  finished  late  that  evening. 

William  J.  Wykert,  clerk  (record  335) : 

Quest.  When  was  the  counting  done  ? — Ans.  On  the  night  following  the  election 
we  counted  until  about  midnight,  and  the  next  day  from  the  time  we  got  there  until 
9  or  10  o'clock  at  night. 


ATKINSON    VS.    PENDLETON.  67 

John  R.  Woods,  judge  (record  336) : 

Quest.  When  did  you  commence  to  count  and  how  long  were  you  engaged  ? — Ans. 
We  began  to  count  the  night  of  the  election  day,  and  counted  until  about  9  or  10 
o'clock  that  night,  and  commenced  the  next  day  about  10  o'clock,  and  finished  that 
night  about  9  or  10  o'clock. 

Thomas  H.  Alley,  judge  (record  343) : 

Quest.  When  did  you  commence  to  count  the  vote  cast  at  your  election  precinct 
on  the  6th  day  of  November,  1888,  and  how  long  were  you  engaged  in  counting  it? — 
Ans.  We  commenced  about  dark  the  day  of  the  election ;  wo  counted  on  until  about 
11  o'clock  that  night,  when  word  came  that  John  Woods's  (one  of  the  judges)  child 
was  sick  and  for  him  to  come  home ;  we  then  adjourned  until  about  9  or  10  o'clock 
the  next  day;  John  Woods  had  then  come  back;  we  finished  counting  about  11 
o'clock  that  night. 

According  to  these  statements  made  by  the  three  judges  and  two 
clerks,  they  were  engaged  in  receiving  and  counting  the  votes  not  less 
than  thirty  hours — two  entire  days  and  until  late  in  the  night  of  each 
day.  These  oflBcers  were  men  unaccustomed  to  such  work  5  their  usual 
rest  was  broken  in  upon,  and  it  is  but  natural  that  they  should  have 
made  mistakes,  and  that  frequent  mistakes  were  made  is  shown  by  the 
testimony.     (Record,  337.) 

Second.  During  the  nights  of  the  count  the  light  was  bad.  There 
were  two  lamps  and  a  lantern  part  of  the  time,  and  then  only  two 
lamps,  and  one  was  used  by  the  judges  and  the  other  by  the  clerks 
(Record,  336).  The  judge  who  took  the  ballots  from  the  box,  and  who 
said  he  read  each  ticket,  was  sixty-two  years  of  age  and  a  Republican 
(Record,  335).  The  judge  who  read  ott"  the  tickets  to  the  clerks  used 
glasses  and  "usually  voted  the  Democratic  ticket;"  but  as  to  how  he 
voted  in  this  election  he  is  silent  (Record,  337).  The  judge  who  strung 
the  ballots  voted  for  the  contestee,  but  he  only  examined  the  tickets  to 
which  his  attention  was  called  as  "  scratched"  ballots.  He  was  sixty- 
two  years  of  age.    (Record,  343.) 

Streight,  the  Republican  judge  who  testified  with  so  much  freedom 
that  there  was  no  difficulty  in  making  the  count,  said  when  he  delivered 
the  ballots  to  the  county  clerk  "  that  he  had  had  trouble  enough  with 
them ;  that  it  had  been  an  awful  job  to  count  that  vote,"  and  "  told  how 
long  the  commissioners  had  been  about  it,  that  the  judges  and  clerks 
were  all  worn  out  when  they  got  through."    (Record,  948.) 

His  memory,  too,  upon  the  witness  stand  seemed  to  be  exceedingly 
good,  but  how  much  reliance  is  to  be  placed  in  it  is  shown  by  his  failure 
to  remember  how  the  vote  stood  between  the  contestant  and  contestee 
at  his  precinct  when  he  delivered  the  return  to  the  county  clerk  on  the 
day  after  the  count  was  concluded,  and  also  by  his  statement  at  the 
same  time  that  "  almost  everybody  voted  for  the  removal  of  the  county 
seat;  that  there  were  only  seventeen  or  eighteen  votes  against  it," 
when  the  returns  made  by  him  as  one  of  the  judges  at  his  precinct 
showed  some  sixty  votes  against  it,  and  when  asked  if  he  could  not  be 
mistaken,  he  said  "  he  was  pretty  positive."    (Record,  948.) 

Third.  When  the  ballots  were  recounted  by  the  county  commissioners 
14  Republican  ballots  were  found  upon  which  the  name  of  the  contestant 
had  been  scratched,  and  one  had  the  name  of  J.  W.  Teater  substituted, 
and  two  had  the  name  of  J.  O.  Pendleton  inserted.  One  Democratic 
ticket  had  the  name  of  Fleming,  the  Democratic  candidate  for  governor, 
erased,  and  the  name  of  Goff,  his  Republican  competitor,  substituted. 
(Record,  948.) 

The  scratching  was  done  with  a  lead  pencil ;  some  were  erased  by 
small  crosses  thus  x    X    X    X,  others  by  straight  marks.    The  county 


68  ATKINSON   VS.   PENDLETON. 

commissioners  in  considering  them  held  them  up  to  the  light  as  if  nn- 
able  to  decide  whether  the  ballots  were  scratched  at  all;  the  scratching 
did  not  appear  as  having  been  made  by  the  same  person.  (Record,  947.) 
We  are  of  the  opinion  that  all  the  circumstances  connected  with  the 
original  count  at  Martin's  *  School-house,  coupled  with  the  indistinct 
marking  of  the  ballots,  go  to  show  that  the  two  judges  who  say  they 
read  all  the  ballots,  in  their  worn  and  tired  condition,  with  imperfect 
eye-sight  and  bad  light,  overlooked  the  marked  "or  scratched  ballots 
which  were  subsequently  discovered,  and  that  such  was  the  fact  no  one 
could  question  for  a  moment,  but  for  the  charge  that  the  ballots  were 
tampered  with  after  they  were  delivered  to  the  clerk,  and  this  we  will 
hereafter  consider. 

archer's  fork. 

At  this  precinct  the  evidence  even  much  more  strongly  points  to  mis- 
takes in  the  count  by  the  officers  of  the  election.  The  recount  discloses 
10  ballots  upon  which  the  name  of  the  contestant  had  been  scratched. 

First.  The  count  commenced  directly  after  dark  and  continued  all 
night  and  until  about  noon  the  next  day.    (Record,  951,  952.) 

Second.  The  light  was  bad.  There  were  two  lanterns  and  a  small 
lamp  until  about  11  o'clock  in  the  night ;  from  11  o'clock  till  4  o'clock, 
one  lantern  and  the  small  lamp;  from  4  o'clock  until  daylight,  only  the 
small  lamp.     (Record,  953.) 

Third.  Two  of  the  judges  were  so  fatigued  and  worn  out  that  they 
went  to  sleep  while  the  count  was  progressing.    ( liecord,  953.) 

Fourth.  There  is  direct  evidence  the  judges  did  not  observe  that  one 
ballot  was  scratched  until  their  attention  was  called  to  it  by  a  by- 
stander who  happened  to  see  it,  and  this  was  in  broad  day-light,  about 
10  o'clock  in  the  morning.     (Record,  952,  953,  954.) 

Fifth.  The  proof  is  positive  that  the  judge  who  called  off  the  ballots 
for  the  clerks  to  tally  did  not,  after  the  count  had  progressed  awhile, 
read  the  names  on  the  ballots,  but  would  call  "straight  Republican 
ticket,"  "straight  Democratic  ticket,"  "straight  goods,"  "hurrah  for 
Harrison;  all  wool  and  a  yard  straight  goods,"  "hurrah  for  Cleveland, 
all  wool  a  yard  wide  and  straight  goods,"  and  the  clerks  would  tally  all 
through  the  long  Republican  or  Democratic  ticket  as  the  call  might  in- 
dicate.    (Record,  952,  953,  954.) 

In  the  light  of  this  testimony  the  verity  of  the  count  by  the  judges  at 
this  precinct  is  greatly  shaken,  and  the  discovery  of  scratched  ballots 
by  the  county  commissioners  at  the  recount  is  not  at  all  surprising,  and 
would  be  accepted  as  conclusive  evidence  of  mistakes  by  the  judges  of 
the  precinct  in  the  absence  of  proof  that  the  ballots  were  tampered  with 
after  they  were  received  by  the  clerk  of  the  county  court. 

It  appears  in  evidence  that  there  was  dissatisfaction  expressed  as  to 
the  Republican  nominee  for  Congress,  and  several  Republicans  de- 
clared their  intention  to  cut  him,  and  one  who  had  been  an  active 
worker  declared  he  would  injure  him  where  he  least  expected.  If  these 
Republicans  carried  out  their  threats  the  "scratching"  at  Martin's 
School- House  and  Archer's  Fork  was  the  natural  consequence. 

CHARGE  THAT  BALLOTS  WERE  FRAUDULENTLY  SCRATCHED. 

As  already  stated,  the  county  commissioners  found  24  ballots  upon 
which  the  name  of  the  contestant  had  been  scratched  and  2  upon 
which  his  name  was  erased  and  the  name  of  the  oootestee  substi- 
tuted ;  this  was  done,  the  contestant  charges,  by  R.  E.  L.  Suodgrass, 


ATKINSON   VS.   PENDLETON.  69 

the  deputy  clerk,  and  he  further  charges  that  BeujamiD  Earnshaw,  the 
president  of  the  county  court,  was  privy  to  the  fraud. 

The  returns  and  ballots  from  these  precincts  were  delivered  to  the 
deputy  clerk  (Snodgrass)  in  sealed  packages  as  the  law  required.  (Rec- 
ord, 426.) 

The  seal  was  not  broken  until  the  packages  were  opened  by  the  com- 
missioners and  the  clerk,  John  C.  McEldowney.  (Record,  426.)  During 
the  recount  the  ballots  were  in  charge  of  the  commissioners  in  the  day- 
time and  then  locked  up  in  the  vault  of  the  clerk's  office  at  night  by  a 
combination  lock.  (Record,  427.)  Surely  this  was  all  that  could  be  ex- 
pected to  secure  tlie  ballots  and  put  them  beyond  the  reach  of  evil 
hands. 

It  is  charged,  however,  that  the  recount  was  contiuued  from  day  to 
day  for  a  number  of  days  with  fraudulent  intent,  and  that  Benja- 
min Earnshaw,  the  president  of  the  county  court,  absented  himself  to 
protract  the  recount,  and  give  an  opportunity  to  R.  E.  L.  Snodgrass, 
the  deputy  clerk,  to  scratch  and  mutilate  the  ballots,  and  upon  this 
charge  the  contestant  relies  to  impeach  the  recount. 

It  is  charged  that  on  the  21st  day  of  November,  1888,  and  during 
the  recount,  Charles  E.  Wells  and  W.  W.  Arnett,  citizens  of  Marion 
County,  appeared  at  the  county  seat  of  Wetzel,  and  that  Wells  had  an 
interview  with  Earnshaw  at  dinner  time  ;  that  later  in  the  day  a  tele- 
gram was  received  by  Earnshaw,  sent  by  Wells,  over  the  signature  of  a 
party  by  the  name  of  Black,  stating  his  (Earnshaw's)  wife  was  sick ; 
that  thereupon  the  recount  was  adjourned  until  the  next  day ;  that  the 
substance  of  the  telegram  was  false  and  that  Earnshaw  knew  it;  and 
that  all  this  was  evidence  of  a  conspiracy  to  perpetrate  a  fraud,  and 
that  it  was  successful. 

Now,  what  does  Earnshaw  say  (record,  944)  ? 

Q.  15.  State,  if  you  remember,  how  many  days  the  county  count  was  in  session  for 
the  purpose  of  canvassing  the  returns. — A.  15.  I  can't  say  positively  how  many  days, 
but  I  believe  we  were  here  in  all  something  like  18  days. 

Q.  16.  State  whether  or  not  during  that  session  of  the  court  you  were  absent ;  and, 
it  so,  how  long  ? — A.  16.  I  was  absent  a  time  or  two,  but  I  don't  remember  how  long  I 
was  absent. 

Q.  17.  State  if,  during  the  session  of  the  county  court,  you  remember  of  having  seen 
Charles  K.  Wells,  of  Marion  County,  here  in  New  Martinsville ;  and,  if  so,  state,  if  you 
know,  what  business  he  was  here  for. — A.  17.  I  remember  of  seeing  Charles  E.  Wells 
during  that  term  of  court;  I  understood  that  he  was  here  in  regard  to  a  suit  pending 
or  to  be  instituted  against  L.  G.  Robinson. 

Q.  18.  State  whether  or  not  you  had  any  business  yourself  of  a  public  or  private 
nature  with  Charles  E.  Wells  at  that  time  ? — ^A.  18.  I  had  business  of  a  private  nature 
with  Charles  E.  Wells  at  that  time. 

Q,  19.  State  whether  or  not  that  business  was  in  any  way,  directly  or  indirectly,  im- 
mediately or  remotely,  connected  with  the  election  held  in  this  county  on  the  6th  of  No- 
vember, 1888,  or  in  any  way  pertained  to  or  affected  the  interests  of  any  candidate  at 
that  election,  and  especially  the  interests  of  John  O.  Pendleton  and  Gr.  W.  Atkinson 
or  A.  B.  Flemming  or  Nathan  Goff,  who  were  candidates  for  otfice  at  said  election  ? — A. 
19.  It  had  nothing  to  do  tvith  the  election  at  all,  and  did  not  affect  the  interest  of  any  can 
didate. 

Q.  20.  State  whether  or  not,  on  the  day  that  C.  E.  Wells  was  here,  or  about  that 
time,  you  received  a  telegram  purporting  to  be  from  Frank  J.  Black,  summoning  you 
home;  aud  if  so,  state,  if  you  know,  who  sent  that  telegram. — A.  20.  I  did  receive  a 
telegram  and  knew  that  Charles  E,  Wells  sent  it. 

Q.  21.  State  whether  or  not  you  left  here  after  receiving  that  telegram. — A.  21.  I 
did. 

Q.  22.  State  whether  or  not,  to  your  knowledge,  that  telegram  was  sent  by  C.  E. 
Wells  for  the  purposeof  interfering  with  the  recount  of  the  votes  then  in  progress  be- 
fore the  county  court  ? — A.  22.  No,  sir  ;  not  at  all,  further  than  it  necessarily  delayed  the 
recount :  but  it  tya«  not  intended  to  interfere  with  the  recount. 

There  was  no  attempt  to  contradict  this  statement  or  to  impeach  the 
■witness. 


70  ATKINSON    VS.    PENDLETON. 

He  swears  positively  that  his  business  with  Wells  was  of  a  private 
nature  and  had  nothing  whatever  to  do  with  the  election,  and  that  the 
telegram  was  not  intended  to  interfere  with  the  recount,  further  than  it 
necessarily  delayed  it.  If  the  contestant  doubted  the  truthfulness  of 
Earnshaw's  statement,  it  was  his  duty  to  summons  Wells.  This  he  did 
not  do. 

There  is  no  evidence  Mrs.  Earnshaw  was  not  sick.  She  has  been  in 
delicate  health  for  years,  and  sometimes  in  very  bad  health.  (Record, 
363.) 

One  witness  testified  that  she  attended  a  party  at  his  house,  "  he 
thought"  on  the  22d  November,  but  "  would  not  be  certain  "  (record, 
363.) 

We  submit  that  there  is  nothing  in  the  testimony  in  this  case  to  im- 
peach the  integrity  of  Earnshaw  and  to  stamp  him  as  a  man  not  only 
unworthy  of  the  honorable  position  he  holds  but  as  a  malefactor  almost 
of  the  deepest  dye. 

We  come  now  to  the  testimony  in  regard  to  Snodgrass,  the  deputy 
clerk,  and  before  presenting  it  we  desire  to  say  that  the  conduct  of  this 
man  after  the  recount  was  certainly  not  commendable.  It  seems 
that  he  expressed  a  willingness  to  take  money  from  the  chairman  of 
the  Eepublican  State  committee  of  West  Virginia  upon  consideration 
that  "  he  would  tell  all  he  knew  about  the  ballot-scratching,"  when  he 
swears  he  knew  nothing  and  could  not  have  told  anything.  He  seems 
to  have  regarded  this  as  a  pardonable  device  to  obtain  money  from  the 
Eepublican  party,  if  its  chairman  was  "  foolish"  enough  to  pay  it;  but 
this  can  be  said  in  his  behalf,  that  it  he  had  been  corrupt  and  vil- 
lainous enough  to  "  scratch "  the  ballots,  as  charged,  he  would  have 
been  corrupt  and  venal  enough  to  have  made  statements  more  direct, 
which,  though  they  might  have  been  false,  it  seems  would  have  secured 
pecuniary  benefit  or  bribe-money.  In  a  word,  money  or  positions  were 
ready  for  him  if  he  would  lay  the  "  scratching  "  upon  some  person ;  and 
if  he  was  bad  enough  to  commit  the  fraud  charged,  he  was  bad  enough, 
for  money  or  position,  to  make  a  false  statement  implicating  some  one 
else.  The  evidence,  however,  shows  conclusively,  we  think,  that  he  could 
not  be  led  into  any  statement  except  that  "he  would  tell  all  he  knew; " 
and  this  not  being  satisfactory  to  the  chairman  of  the  Eepublican  State 
executive  committee,  the  negotiations  ended. 

This  conduct  upon  the  part  of  Snodgrass  alone  has  induced  the  con- 
testant to  charge  him  with  scratching  the  ballots,  as  he  had  access  to 
the  clerk's  office.  At  first,  J.  M.  Mclntire,  who  seems  to  have  had 
charge  of  the  Eepublican  organization  in  Wetzel  County,  suspicioned  a 
man  by  the  name  of  Null,  whom  he  said  was  acting  suspiciously  in  the 
clerk's  office  one  evening,  but  he  found  he  was  mistaken  in  the  man,  and 
that  "got  him  off  his  pins  and  he  did  not  know  what  to  say"  (record, 
937.)  He  then  engaged  a  man  by  the  name  of  Grail,  against  whom  he 
held  a  bond  and  to  whom  he  promised  $650  or  $700,  "  enough  to  square 
off"  the  bond  and  a  position  in  Washington  at  $100  per  month,  for  four 
years,  to  gather  information  for  him,  and  suggested  that  Snodgrass 
"  knew  all  about  it."  Grail  went  to  Snodgrass  and  told  him  what 
Mclntire  had  promised  him,  and  Snodgrass  told  him  to  agree  to  tell  all 
he  knew  about  it  "  and  then  swear  you  know  nothing  "  and  get  the 
money.  Grail  said  he  would  not  like  to  do  that  (record,  938).  We  give 
the  following  as  the  further  statement  of  Grail  in  his  own  language: 

He  (Snodgrass)  said  I  would  if  I  could  get  a  chance  at  them;  I  told  him  then  I 
conld  easily  enough  get  them  on  to  you  by  telling  them  I  believe  that  you  knew 
something  about  it  and  that  you  would  teU  all  you  knew  about  it  for  a  certain 


ATKINSON    VS.    PENDLETON.  71 

amount  o».  money;  Lee  said  then,  all  right,  you  do  that ;  I  went  to  Mclu  tire  then 
and  told  uim  that  I  believed  that  Lee  Snodgrass  knew  something  about  the  ticket- 
scratching  and  would  tell  all  he  knew  for  a  certain  sum  of  money  ;  then  Mr.  Mclntire 
wanted  to  know  how  much  I  thought  he  wanted;  I  told  him  I  did  not  know,  but  I 
thought  he  would  tell  for  about  $2,000,  or  along  there ;  then  Mclntire  said  that 
is  a  little  steep,  and  said  you  see  him  whether  or  not  he  would  not  do  it  for  less 
money  ;  I  told  him  then  I  would ;  he  says,  you  see  him  and  let  me  know  and  if  we 
can  make  it  satisfactory,  the  amount,  that  he  would  draw  up  the  writings  and  go  up 
to  Wheeling  and  see  Cowden  ;  I  went  and  saw  Lee  the  next  day  after  this  conver- 
sation and  told  him  what  Mclntire  told  me  ;  and  he  toldme  then  that  he  would  rather 
talk  to  Mclntire  himself  so  they  would  understand  each  other  exactly  ;  after  that  I 
saw  Mclntire  and  told  him  what  Lee  had  told  me,  and  he  says  all  right,  you  toll  Lee 
to  come  to  my  oflBce  this  evening ;  I  told  him  I  would  see  Lee  and  I  did  so. 

Q.  11.  When  you  told  Mclntire  that  you  thought  Lee  Snodgrass  knew  something 
about  the  scratching  of  the  ballots  and  would  tell  for  a  sum  of  money  did  you  mean 
to  state  what  you  believed  to  be  true  or  what  Lee  had  told  you  to  state,  as  you  have 
said  before? — A.  11.  Ijust  told  him  because  Lee  had  told  me  to  tell  him;  I  did  not, 
know  it  was  true  and  did  not  think  it  was. 

"Q.  11.  What  do  you  know,  if  anything,  about  such  scratching  of  ballots  as  has 
been  mentioned? — A.  11.  I  don't  know  anything. 

Mclntire  visited  the  clerk's  ofQce  and  had  an  interview  with  Snod- 
grass, in  which  Mclntire  promised  Snodgrass  that  he  should  not  be 
prosecuted  and  ^should  have  a  Government  position  at  Washington 
that  would  pay  at  least  $1,800  a  year.  Snodgrass  replied  he  wanted  no 
Government  position,  but  would  tell  all  he  knew  about  the  ticket  scratch- 
ing for  $3,000  in  cash,  and  that  he  must  have  the  money  before  he  made 
the  affidavit.  Mclntire  then  wanted  Snodgrass  to  go  to  Wheeling  to  fix 
the  matter  up,  but  Snodgrass  declined.  Mclntire  then  proposed  to 
Snodgrass  to  go  to  Sistersville,  but  Snodgrass  again  declined.  Mclntire 
then  said  he  would  go  to  Wheeling  and  see  W.  J.  D.  Cowden,  the  chairman 
of  the  executive  committee  of  the  Republican  party  of  West  Virginia, 
and  get  him  to  come  to  the  county  seat  of  Wetzel. 

In  a  few  days  Mclntire  saw  Snodgrass  and  told  him  that  Cowden 
would  be  down  the  next  evening.  Cowden  came  and  an  interview  was 
arranged  between  him  and  Snodgrass.  As  to  what  took  place  at  this 
interview  Cowden  and  Snodgrass  differ.  Cowden  states  that  Snodgrass 
said,  "Well,  to  cut  a  long  story  short,  I  will  tell  all  about  it  for 
$3,000  cash ;"  to  which  he  replied,  "I  can  not  accept  any  such  offer.'^ 
Snodgrass  testifies  that  "  Cowden  said  he  could  offer  him  no  special 
inducement  to  make  a  statement,  further  than  that  he  wanted  me  to 
understand  that  the  Eepublican  party  had  elected  a  President,  also  a 
governor  of  the  State,  and  that  they  would  remember  their  friends,  and 
that  they  would  be  well  provided  for,  and  that  when  he  said  well  pro- 
vided for  he  meant  amply  provided  for." 

"Then  he  went  on  to  explain  the  advantages  of  a  life  in  Washington  City,  backed 
up  with  a  good  Government  position  paying  from  |1,800  to  |2,000  per  year  and  not 
much  to  do  ;  and  he  said  he  could  not  offer  me  any  further  inducement  to  make  the 
statement  except  that  I  would  be  exonerated  from  prosecution  in  case  my  statement 
should  implicate  myself;  and  said  that  the  reason  why  he  could  not  ofl'er  any  further 
inducement,  that  it  would  go  toward  weakening  my  evidence  before  a  jury,  and  that 
they  wanted  as  strong  a  case  as  possible.  I  told  him  that  as  I  was  a  Democrat  I  did 
not  care  to  hold  a  Government  position  under  a  Republican  administration  ;  that  I 
did  not  care  to  live  in  Washington  City  ;  but  I  told  him,  to  cut  the  matter  short,  I 
would  tell  all  I  knew  about  the  ticket  scratching  for  $3,000  in  cash,  and  would  make 
an  affidavit,  but  I  must  have  the  cash  before  the  affidavit;  also  to  have  an  agreement 
in  writing,  signed  in  duplicate,  he  to  retain  one  copy  and  me  the  other,  setting  out 
■what  I  was  to  do  for  the  $3,000.  Mr.  Cowden  said  that  my  offer  was  for  a  large 
amount  of  money,  and  a  fixed  sum,  and  if  that  fact  was  made  known  to  a  jury  on  the 
trial  of  any  indictment  that  might  be  found  upon  my  statement  it  would  tend  to 
weaken  my  evidence  very  much.  Then  I  told  Mr.  Cowden  that  when  I  made  my  state- 
ment that  I  would  furnish  evidence  to  prove  that  the  statement  I  made  was  true. 
Mr.  Cowden  said  that  he  could  not  make  me  an  offer  of  any  fixed  amount  of  money, 
but  would  take  the  matter  under  consideration,  and  that  1  would  hear  from  him  agaiiu 


72  ATKINSON    VS.    PENDLETON. 

Then  I  told  Mr.  Cowden  tbat  I  would  be  compelled  to  leave.  Mr.  Cowdeu  iusisted  on 
me  staying  and  have  a  longer  talk.  I  told  Lim  that  I  had  nothing  more  to  say  about 
the  matter,  and  that  if  he  did  not  want  the  goods  at  the  price  he  did  not  have  to  take 
them.  Then  it  was  understood  all  around  between  Cowden,  Mclntire,  Grail,  and  my- 
self that  nothing  would  be  said  about  dnv  meeting.  Then  Mr.  Cowden  gave  me  to 
understand  that  he  would  further  consider  my  proposition,  aud  that  I  would  hear 
from  him  soon.     Then  Mclntire,  Grail,  and  myself  left  the  room." 

Snodgrass  is  corroborated  by  Grail,  who  was  present,  and  testified  as 
follows : 

Q.  15.  Were  you  present  at  the  Brast  House  at  the  time  of  the  interview  between 
E.  E.  L,  Snodgrass  and  Mr.  W.  J.  W.  Cowden,  chairman  of  the  Republican  State  ex- 
ecutive committee?  Aud  if  so,  state  how  you  came  to  be  present  and  what  occurred 
between  Mr.  Cowden  and  Mr.  Snodgrass ;  stating  as  fully  as  you  can  what  was  said 
by  each  aud  who  were  present  at  that  interview  ? — A.  15.  I  was  present ;  Mr.  Snod- 
grass told  me  that  they  had  made  arrangements  for  Cowden  to  be  here  on  Monday 
.evening ;  I  also  heard  the  arrangements  between  Mclntire  and  Suodgrassthat  Cowden 
was  to  be  here  on  Monday  evening ;  I  think  it  was  Monday  evening  ;  I  am  not  certain  ; 
it  was  on  the  Slst  day  of  December  that  he  was  here,  and  I  camo  down  street  and 
met  Mclntire,  and  he  told  me  that  Cowden  was  here,  and  he  told  me  that  Lee  wanted 
me  to  come  down  to  the  Brast  House  aud  go  to  Cowden's  room,  aud  I  went  down  and 
Mclntire  and  Lee  Snodgrass  and  myself  went  up  into  the  room  ;  then  Mclntire  intro- 
duced us  to  Cowdeu,  and,  after  some  conversation,  it  was  either  Mclntire  or  Cowden 
said,  "I  suppose  you  gentlemen  know  what  business  you  came  here  for,"  and  Mr.  Snod- 

frass  replied,  "  I  suppose  we  do  ;"  then  Mr.  Cowden  said,  "  We  might  as  well  come 
own  to  business  ;  "  says,  "  I  understood  that  you,  Snodgrass  and  Mclntire,  hatl  some 
understanding  about  this  matter;"  he  said,  "  Of  course  I  can't  make  you  no  special 
oflfers  or  inducements  to  get  you  to  give  this  away,  as  we  want  your  evidence  as  strong 
as  it  can  be  made  if  it  should  go  to  any  court,"  as  near  as  I  can  remember. 

Cowden  said  that  he  should  be  well  taken  care  of  if  he  should  give  it  away  ;  that 
he  could  get  an  office  as  clerk  at  Washington,  that  would  pay  him  from  $1,500  to 
$2,000  per  year,  and  he  told  him  that  it  would  be  much  nicer  to  live  there  than  here, 
and  it  would  be  much  easier  work.  I  can  not  remember  word  for  word,  but  he  said 
the  streets  were  so  much  nicer  there,  and  everything  surrounding,  that  he,  Lee, 
would  like  the  city  much  better  than  he  would  here.  Then  Lee  told  Cowden  it  would 
not  be  very  pleasant  for  him  to  accept  a  position  of  that  kind,  that  he  was  a  Demo- 
crat, and  has  been  all  his  life.  Cowden  told  him  then  that  would  not  make  any  dif- 
ference, that  the  Republican  party  would  always  take  care  of  a  good  friend,  and  told 
him  further  that  they  had  the  President  elected  now  and  had  a  majority  in  the  Sen- 
ate and  Congress  both — I  think  that  is  what  he  said — and  that  he  would  be  sure  of  a 
4  years'  job  and  probably  longer.  Then  Lee  told  him  that  he  did  not  want  any  office, 
that  the  only  way  he  would  tell  what  he  knew  would  be  for  the  money  cash  down. 
Cowden  told  him  he  could  not  do  that ;  as  he  said  before,  they  could  not  use  his  evi- 
dence in  court,  as  it  would  not  have  any  effect,  or  words  to  that  effect.  Then  Lee 
told  him  he  did  not  think  they  could  come  to  any  terms  then,  for  that  would  be  the 
only  way  he  would  tell  what  he  knew.  Lee  said  he  would  tell  for  $3,000,  after  Cow- 
den had  asked  what  he  would  want.  There  was  present  Mclntire  and  myself  and 
Lee  Snodgrass  and  Cowden. 

Q.  16.  After  Snodgrass  had  stated  what  he  would  take  what  did  Cowden  then 
say  ? — A.  16.  He  said  that  they  could  not  give  him  any  money,  but  he  would  insure 
him  that  he  would  be  well  provided  for,  or  something  to  that  effect;  I  guess  that 
was  the  remark  he  made. 

Q.  17.  When  the  interview  ended  was  there  anything  said  by  any  one  about  keep- 
ing the  matter  secret ;  and,  if  so,  by  whom  ? — A.  17.  Yes,  sir;  Mr.  Cowden  said  that 
we  would  keep  this  meeting  8ecret,"and  no  one  need  know  anything  about  it,  or  words 
to  that  effect. 

From  all  the  testimony  it  appears  that  however  censurable  Snod- 
grass's  proposition  may  have  been,  he  had  the  moral  courage  to  resist 
the  strong  temptation  held  out  to  him  to  perjure  himself;  that  though 
inducements  of  the  strongest  character  were  presented,  he  came  forth 
from  the  interviews  without  perjury  on  his  soul  and  without  ill  gotten 
gains  polluting  his  pocket.  His  perhaps  unguarded  remark  and  im- 
mature proposition  seem  to  have  reached  the  ears  of  men  who  were  as 
willing  to  buy  as  he  was  to  sell,  but  they  were  unwilling  to  pay  unless 
they  got  full  value. 

This  is  all  there  is  in  reference  to  Snodgrass,  and  we  submit  whether 
a  recount  can  be  impeached  by  the  foolish  and  even  reprehensible  con- 


ATKINSON   VS.    PENDLETON.  73 

duct  of  a  party  loug  after  it  lias  been  dosed,  simply  because  the  party 
had,  in  an  official  capacity,  possible  access  to  the  ballots  during-  the  re- 
count. Apart  from  this  circumstance  there  is  not  the  slightest  testi- 
mony which  reflects  in  the  mo:^t  remote  degree  upon  Snodgrass. 

To  hold  that  the  contestee  shall  be  deprived  of  the  gain  he  made  by 
the  recount,  would  be  to  hold  that  an  act  done  is  fraudulent  because 
some  official  connected  with  it  and  standing  fair  and  unimpeached  in 
the  community  at  the  time  was  guilty  of  conduct  demanding  censure 
at  some  period  thereafter. 

We  believe  the  judges  of  the  election  at  Martin's  School-House  and 
Archer's  Fork  precincts  in  Wetzel  County  made  mistakes  in  counting 
the  ballots,  and  that  the  recount  subsequently  made  by  the  county  com- 
missioners was  correct  and  truly  represented  the  actual  vote  cast  at 
these  precincts. 

It  only  remains  now  for  us  to  recapitulate  our  conclusions. 

Statement  1. 

Returned  vote  for  contestee 19,261 

Add  votes  tendered  by  duly  qualified  voters  and  rejected 

19, 263 
Deduct  illegal  votes  shown  by  conclusive  testimony  to  have  been  cast  for  him .  28 

Whole  vote  for  contestee 19,235 

Returned  vote  for  contestant 19,242 

Add  votes  tendered  by  duly  qualified  voters  and  rejected 2 

19, 244 
Deduct  illegal  votes  shown  by  conclusive  testimony  to  ha ve  been  cast  for  him .  54 

Whole  vote  cast  for  contestant 19, 190 

Whole  vote  for  contestee 19,235 

Whole  vote  for  contestant 19,190 

Majority  for  contestee 45 

This  is  the  statement  which  we  believe  is  based  upon  the  law  and 
sound  public  policy. 

Statement  2. 

Returned  vote  for  contestee 19,261 

Add  rejected  votes 2 

19,263 

Deduct  illegal  votes  in  Statement  1  28 

Deduct  illegal  votes  where  evidence   shows  only  that  the  voters  were 

considered  or  reputed  to  be  Democrats 14 

- —  42 

Whole  vote  for  contestee ,  19,221 

Returned  vote  for  contestant 19,242 

Add  rejected  votes 2 

19,244 

Deduct  illegal  votes  in  Statement  1 54 

Deduct  illegal  votes  where  evidence  shows  only  that  the  voters  were  con- 
sidered or  reputed  to  be  Republicans 20 

74 

19, 170 

Whole  vote  for  contestee 19,221 

Whole  vote  for  contestant 19,170 

Majority  for  contestee 51 


74  ATKINSON   VS.    PENDLETON. 

We  make  this  statement  for  the  consideration  of  the  House  in  the 
event  it  is  thought  that  proof  only  that  a  voter  was  considered  or  re- 
puted to  be  a  Democrat  or  Republican  is  suflBcient  to  show  how  he  voted. 

Statement  3. 

Majority  for  contestee  under  Statement  1 45 

Deduct  votes  claimed  by  contestant  at  Martin's  School-House  and  Archer's  Fork..  26 

Majority  for  contestee 19 

Majority  for  coutestee  under  Statement  2 51 

Deduct  votes  claimed  by  contestant  at  Martin's  School-House  and  Archer's  Fork . .  26 

Majority  for  contestee 25 

This  statement  is  x^resented  to  show  that  the  coutestee  has  a  clear 
majority  of  19  or  25  even  after  deducting  all  that  contestant  claims  at 
Martin's  School-House  and  Archer's  Fork. 

We  are  of  the  opinion  that  in  any  aspect  of  the  case  the  coutestee  v»'as 
duly  elected,  and  we  submit  the  following  resolutions : 

Resolved,  That  George  W.  Atkinson  was  not  elected  aEepresentative 
in  the  Fifty-first  Congress  from  the  First  Congressional  district  of  West 
Virginia,  and  is  not  entitled  to  a  seat  therein. 

Resolved,  That  John  O.  Peudleton  was  duly  elected  a  Representative 
in  the  Fifty-first  Congress  from  the  First  Congressional  district  of  West 
Virginia,  and  is  entitled  to  his  seat  therein. 

Chas.  O'Ferball. 
Levi  Maish. 
Charles  F.  Cetsp. 

Jos.   H.   OUTHWAITE. 
L.  W.  MOOEE. 

R.  P.  C.  Wilson. 


L.  P.  FEATHEKSTON  vs.  W.  H,  GATE. 

FIRST  ARKANSAS. 


Contestant  charged  conspiracy,  violence,  intimidation,  and  fraud. 
The  committee  find  frauds  sufficient  in  amount  to  overturn  the  majority 
returned  for  contestee  and  to  show  a  majority  for  contestant.  The 
minority  find  the  charges  of  fraud  not  sustained  by  the  evidence,  and 
that  part  of  the  testimony,  being  taken  without  legal  notice,  should  not 
be  considered.  The  case  was  called  up  March  1,  1890,  and  debated 
until  March  5,  when  the  resolutions  presented  by  the  committee  were 
adopted  by  a  vote  of  145  to  135,  and  Mr.  Featherston  was  sworn  in. 
The  debate  will  be  found  of  pages  1843  to  1955  of  the  Record. 

(1)  Return  To  he  thrown  out  if  false,  hut  the  votes  cast  not  necessarily  lost. 
Where  the  evidence  shows  a  return  to  be  false  and  not  a  true  state- 
ment of  the  votes  cast,  such  return  is  impeached  and  destroyed  as  evi- 
dence. But  the  rejection  of  a  return  does  not  necessarily  leave  the 
votes  actually  cast  at  a  precinct  uncounted.  (See  ante,  Atkinson 
vs.  Pendleton.)  The  return  being  shown  to  be  false  the  parties  are 
thrown  back  on  such  evidence  as  it  may  be  in  their  power  to  produce 
to  show  how  many  votes  were  cast  and  for  whom.  All  the  votes  may 
thus  be  proved  and  counted,  but  if  only  a  part  is  proved,  those  proved 
are  to  be  counted  and  the  rest  disregarded. 

(2)  Suppression  of  testimony. 

Where  one  party  suppresses  testimony  strict  and  technical  proof  will 
not  be  required  of  the  other. 

(3)  No, election. 

Where  no  election  is  held  votes  can  not  be  counted. 

(4)  Notice  of  contest. 

The  recitals  in  the  notice  can  have  none  of  the  sanctity  and  binding 
force  of  an  agreement  or  stipulation,  and  can  not  be  construed  into  a 
concession. 

(5)  Testimony  taken  without  notice.     Question  of  notice  may  be  waived. 
When  depositions  are  found  in  the  printed  record  and  no  objection 

is  made  to  the  Clerk  of  the  House  or  to  the  opposite  party,  the  party 
failing  to  object  at  the  earliest  opportunity,  or  at  least  within  reason- 
able time  so  as  to  put  the  opposite  party  on  notice,  will  be  deemed  to 
have  waived  all  question  of  notice,  especially  where  there  is  no  offer  of 
proof  to  show  a  different  state  of  facts  from  that  shown  by  the  deposi- 
tions objected  to. 

75 


HEPOHT. 


Febeuaey  19,  1890. — Mr.  HouK,  from  the  Committee  on  Elections, 
submitted  the  following  report: 

The  Committee  on  Elections  having  had  under  consideration  the  con- 
tested-election case  of  L.  P.  Featherston  vs.  W.  H.  Gate,  from  the  First 
Congressional  district  of  Arkansas,  submit  the  following  rei)ort: 

This  contest  differs  in  one  respect,  at  least,  from  all  other  cases  of  a 
like  character  pending  before  the  House  of  Representatives.  The  con- 
tention for  a  seat  in  the  Housq  of  Representatives  from  the  First  Con- 
gressional district  of  Arkansas  is  between  Democrats,  the  contestant 
having  veered  out  of  the  party  line  so  far  as  to  have  become  the  head 
of  an  organization  in  that  State  known  as  "  The  Wheel,"  while  the  con- 
testee  continued  to  adhere  to  and  was  the  candidate  of  what  was  known 
as  the  regular  Democracy.  The  contestee  gives  the  following  history 
of  the  political  conditions  prevailing  in  that  district  prior  to  and  about 
the  time  of  the  election  in  November,  1888 : 

A.  Along  in  the  year  1888  the  Wheel  became  a  factor  in  politics.  It  was  supposed  to 
be  a  non-political  organization,  formed  ostensibly  for  the  promotion  of  agricultural  in- 
terests, and  to  down  monopoly,  and  to  throttle  the  giant  corporations  that  were  re- 
puted to  be  fattening  on  the  labor  of  the  hnsbandnian  ;  to  smash  the  trusts,  abolish 
national  banks,  etc. — all  very  commendable,  doubtless,  and  most  certainly  a  labor  of 
great  magnitude,  and  sufficient  to  afford  ample  employment  to  the  good  Wheelers 
without  the  additional  task  of  regulating  and  purifying  the  politics  of  the  country. 

These  doctrines  of  the  Wheel  were  popular,  and  the  organization  grew  and  became  a 
power  in  the  land,  and  thither  turned  their  eager  steps  the  Anarchist,  the  Communist, 
the  venerable  Greenbacker,  the  political  nondescript,  sorehead,  and  bummer  of  every 
creed  and  faith,  and  essayed  to  lead  in  the  great  reform.  The  rank  and  file  were  com- 
posed largely  of  the  farmers,  mostly  Democrats — there  being  no  doubt  10,000  of  22,000 
Democrats  in  the  district  who  were  Wheelers — and  somewhat  out  of  temper  because 
of  the  evils,  real  or  supposed,  then  prevalent,  and  in  a  frame  of  mind  to  drift  away 
from  the  Democratic  camp  and  set  up  for  themselves  in  a  great  work  of  reform,  as 
they  supposed. 

The  shrewd  Republican  leaders  quickly  took  in  the  situation,  and  seeking  to  im- 
prove what  seemed  to  be  any  opportunity  to  beat  the  Democrats  in  one  of  their 
strongholds,  adroitly  managed  to  have  their  emissarios  and  agents  initiated  into  the 
lodge  of  the  Wheelers,  it  being  a  secret  organization. 

It  is  needless  to  state  that  these  were  faithful  and  effective  members,  never  failing 
to  attend  at  a  meeting,  and  always  overflowing  with  sympathy  for  the  poor  farmer 
and  brimful  of  a  spirit  of  reform. 

The  candidate  of  the  Wheelers,  the  contestant  herein,  was  president  of  the  State 
Wheel,  which  in  itself  gave  him  a  powerful  hold  on  the  brethren,  and  it  was  reason- 
ably thought  he  could  hold  the  Wheelers  solid  for  his  cause,  and  then  if  the  Repub- 
licans could  be  brf^ught  to  his  aid  this  would  certainly  make  a  combination  that 
would  overthrow  the  Democrats. 

The  scheme  was  not  only  shrewd  and  well-planned,  but  it  was  also  comprehensive, 
from  the  fact  that  it;  was  doubtless  made  to  embrace  two  districts — the  first  and  sec- 
ond ;  the  agreement  among  the  leaders  being  that  the  Republicans  should  support 
the  Wheel  candidate  in  the  first,  and  the  Wheelers  should  support  the  Republican 

candidate  in  the  second. 

77 


78  FEATHERSTON   VS.    GATE. 

Now,  it  mnst  be  said  to' the  credit  of  the  Republican  leaders  that  they  kept  their 
part  of  the  compact  religiously  to  the  extent  of  their  ability.  So  earnest  indeed  were 
they,  that  ex-Goveruor  Powell  Clayton,  the  able  and  powerful  leader  in  this  State, 
actually  came  into  the  first  district  to  canvass  for  the  Wheel  candidate,  with  the  ob- 
ject of  influencing  the  Republicans  to  support  contestant  and  to  reconcile,  if  possible, 
a  strong  disaffected  element.     (Record,  page  47.) 

•  *  *  jf  «  •  • 

It  was  found  necessary  to  give  the  Wheel  candidate  official  indorsements  by  the 
Republican  paity  so  as  to  control  the  voters  to  his  support.  Accordingly  the  district 
committee  was  called  together,  when  it  was  found  that  a  wide  difference  of  opinion 
existed  among  them.  The  more  intelligent  argued  that  as  the  Wheel  candidate  and 
Democratic  candidate  had  already  made  a  canvass  of  the  district  and  the  lines  were 
sharply  drawn  and  the  fight  so  far  almost  entirely  within  the  Democratic  party, 
it  was  an  opportune  time  to  run  a  straight  Republican  and  capture  the  district. 
After  much  discussion  they  adjourned  to  October  27,  when  they  gave  the  Wheel  man 
an  indorsement,  etc. 

We  give  the  above  quotation  from  contestee's  brief  for  the  i)urpose 
of  showing  that  there  was  great  disafl'ectioii  among  the  Democrats  in 
this  district,  and  that  all  the  other  parties — Wheelers,  Greenbackers, 
and  Pepublicans — were  supporting  the  contestant,  who  had  been  a  Demo- 
crat and  who  was  "in  a  frame  of  mind  to  drift  away  from  the  Demo- 
cratic camp,"  and  it  may  furnish  a  solution  of  why  it  was  necessary  for 
the  contestee,  or  his  friends,  to  overcome  this  defection  in  the  strong 
Republican  counties. 

It  is  clearly  establish*id  by  the  evidence  that  Crittenden  County  is 
Republican,  and  for  years  has  given  large  majorities  for  the  Republican 
party. 

William  Royster,  in  speaking  of  the  number  of  Republicans  in  Crit- 
tenden County,  testified : 

Q.  What  proportion  of  that  vote  is  the  Republican  vote? — A.  About  2,500  or 
2,600.     (Printed  Record,  page  191.) 

On  the  same  subject,  Jordan  Yates  (col.),  a  witness  on  behalf  of  the 
contestant,  being  first  duly  sworn,  testified  as  follows  : 

Q.  What  is  your  name  ? — A.  Jordan  Yates. 

Q,  Where  do  you  live  ? — A.  Live  in  West  Memphis,  Crittenden  County,  Ark. 

Q-  How  old  are  you  T — A.  I  am  about  42. 

Q.  How  long  have  you  been  in  Arkansas  ? — A.  Ever  since  1865 ;  Crittenden  County. 

Q.  What  is  your  business  ? — A.  Farmer. 

Q.  You've  had  something  to  do  with  politics  in  your  county  ? — A.  Oh,  yes,  sir ;  Pve 
had  a  great  deal  to  do  with  it. 

Q.  Do  you  hold  any  official  position  in  your  county  ? — A.  I'm  chairman  of  the  county 
central  committee,  and  was  also  chairman  of  the  county  convention  ;  I'm  chairman 
now  of  the  county  central  committee. 

Q.  Have  you  a  pretty  good  idea  of  the  number  of  voters,  Republican  voters,  in  your 
county  ? — A.  Yes,  sir;  I  got  a  pretty  good  idea  about  the  number  of  Republican  vot- 
ers in  the  county. 

Q.  What's  your  estimate  ? — A.  Well,  sir,  I  think  there's  about  2,.50O;  that's  pretty 
close.     I  think  it's  close  on  to  2.500.     (Printed  record,  page  192.) 

On  the  same  subject  J.  L.  Fleming  testified  : 

Q.  Do  you  know  whether,  if  there  was  a  correct  count  of  the  actual  vote  in  Critten- 
den County — whether  the  Republican  party  or  Democratic  party  would  carry  the 
county? — A.  Well,  sir,  if  they  had  a  correct  vote,  the  two  parties,  Crittenden  County 
is  Republican  by  1,800  majority  ;  that's  what  I  think.     (Printed  record,  page  195.) 

Wash.  Deaver,  on  this  subject,  testified : 

Q.  Did  the  colored  people  over  there  take  any  interest  in  the  national  election  ? — 
A.  Yes,  sir;  biggest  vote  was  polled  in  that  county  in  the  national  election  ever  I 
knowed,  and  I  been  there  ever  since  the  surrender. 

Q.  What  was  the  vote  of  that  county  in  the  national  election;  do  you  know  ? — A. 
I  don't  kuow  exactly. 

Q.  Have  yon  any  idea  ? — A.  I  think  it  was  about  2,500. 

Q.  Who  was  that  vote  polled  for  ? — A.  Harrison  and  Featherston. 


FEATHERSTON   VS.    GATE.  79 

Q.  Why  were  the  colored  people  ot  that  county  especially  anxious  for  a  Rep.  ad- 
ministration of  national  affairs? — A.  Well,  air,  it  was  on  the  account  of  they  had 
been  pressed  by  this  Winchester  crowd  this  last  year,  and  hoped  to  get  some  relief 
from  that  element.  I  knew  years  before  that  in  the  Presidential  election  they  hardly 
ever  paid  any  attention  to  it,  scarcely  polled  any  votes  there  in  the  county. 

Q.  What  do  you  mean  by  being  pressed  ? — A.  No,  sir  ;  not  a  fair  show  before  the 
law,  and  the  ballots  never  were  counted  ;  they  bad  no  show  at  all.  The  Winchester 
crowd  just  bulldozed  and  done  as  they  pleased,  and  if  they  had  a  mayor  to  try  him, 
if  he  was  on  their  side  they'd  turn  him  loose,  no  matter  what  his  crime  was,  and  the 
other  party  was  put  in  jail  and  prosecuted  every  way  they  could. 

Q.  Do  you  think  the  Rep.  party  of  Ark.  expects  the  national  Rep.  party  to  remedy 
that  state  of  affairs  ?— A.  That's  what  they  think. 

Q.  Was  it  in  that  hope  to  turn  out  and  poll  such  a  large  vote  for  the  national 
ticket  t— A.  Yes,  sir. 

Q.  If  they  had  received  a  fair  count,  about  how  much"  plurality  would  they  have 
received  ? — A.  About  2  thousand.     (Printed  record,  page  224). 

E.  D.  Sanders,  on  tbe  same  subject,  testified  as  follows : 

Q.  What  proportion  "of  the  vote  in  the  county  of  Crittenden  do  you  presume  was 
polled  for  Harrison  and  Featherston  ? — A.  I  think  there  was  twenty-five  hundred 
votes;  I  made  an  estimate  of  it  myself. 

Q.  What  was  the  proportion  ? — About  six  to  one. 

Q.  Did  Featherston  receive  any  other  votes  in  the  county  of  Crittenden  in  addition 
to  those  polled  for  Harrison  ? — A.  Yes,  sir. 

Q.  Of  your  certain  knowledge?— A.  Of  my  certain  knowledge. 

Q.  In  your  own  precinct  wisat  was  the  vote  ;  were  you  at  the  polls  yourself? — A. 
Yes,  sir ;  I  was  at  the  Bradley  precinct.    I  think  Featherston  was  195 ;  Cate  was  4. 

Q.  In  the  county  precincts  is  that  a  fair  proportion  of  the  Democratic  and  Repub- 
lican vote  in  Crittenden  County  ? — A.  Well,  that  one  wouldn't  hardly  be.  There's 
two  or  three.  Black  Oak  and  Marion  and  Crawfordsville,  I  expect  there  is  a  little 
varied. 

Q.  I  say  the  country  precincts. — A.  Yes,  I  reckon  it  would;  that  would  be  a  fair 
sample. 

Q.  The  falling  off  of  your  vote  on  account  of  its  being  a  rainy  day  at  your  precinct, 
do  you  recollect  what  it  was — what  per  cent.? — A.  The  falling  off  was  5  per  cent, 

Q.  Was  the  interest  manifested  in  the  national  election  about  equal  all  over  the 
county  ? — A.  Yes,  sir ;  well,  I  took  really  more  interest  myself  in  it  than  I  did  in  the 
State  election. 

Q.  And  had  the  interest  pretty  generally  infused  all  over  the  county  ? — A.  Yes,  sir. 
(Printed  record,  page  200.) 

David  Furgeson,  on  the  same  subject,  testified : 

Q.  The  Republican  vote  in  that  county  was  about  what,  in  round  numbers  ? — A, 
About  2,500. 

Q.  Their  Democratic  vote  was  about  what  ? — A.  About  420.  (Printed  record,  page 
208.) 

It  appears  from  the  record  that  prior  to  July,  1888,  the  county  court 
clerk  and  one  other  officer  of  this  county  had  been  indicted  for  drunk- 
enness— possibly  under  the  following  statute  of  Arkansas : 

Sec.  561.  When  the  circuit  court  shall  be  satisfied,  from  its  own  knowledge,  or 
from  the  information  of  others,  on  oath,  that  the  clerk  of  such  court  has  been  guilty 
of  any  misdemeanor  in  office,  or  shall  be  incapable  of  discharging  the  duties  of  his 
office  according  to  law,  or  shall  he  a  drunkard,  such  court  shall  give  notice  thereof  to 
the  prosecuting  attorney,  stating  the  charges  against  such  clerk,  and  requiring  him 
to  prosecute  the  same,  and  such  clerk  may  be  suspended  from  office  until  a  trial  can 
be  had,  etc.    (Mansfield's  Digest  of  Arkansas.) 

Sec.  6475.  Whenever  any  presentment  of  indictment  be  filed  in  any  circuit  court 
of  this  State  against  any  county  officer  for  incompetency,  corruption,  gross  im- 
morality, criminal  conduct,  etc.,  such  circuit  court  shall  immediately  order  that  such 
officer  be  suspended  from  his  office  until  such'  presentment  or  indictment  shall  be 
tried,  etc.     (Mansfield's  Digest  of  Arkansas.) 

Why  the  indicted  ofiBcers  were  not  suspended  in  compliance  with 
these  statutes,  after  having  been  indicted,  is  not  susceptible  of  expla- 
nation, except  upon  the  assumption  that  the  judge  of  the  circuit  court 
did  not  think  the  indictment  could  be  sustained,  and  was  therefore  un- 
willing to  allow  the  law  to  be  used  as  anj-^  part  of  a  scheme  in  political 


80  FEATHERSTON    VS.    CATE. 

manipulations.  Upon  the  indictment  found  against  them  these  oflBcers 
were  to  have  been  tried  on  the  12th  day  of  July,  1888,  the  court  being 
then  in  session. 

On  that  morning  something  like  100  men  appeared  at  the  court- 
house town  armed  with  Winchester  rifles.  None  of  the  rifles  seems  to 
have  been  seen  by  any,  except  those  in  the  plot  previous  to  that  day. 

These  men,  thus  armed  with  Winchester  rifles,  proceeded  to  take  into 
custody  and  force  all  the  county  oflBcers,  save  the  sheriff,  who  was  of 
the  "  Wiuchester-rifle  crowd,"  to  leave  the  county  under  threat  of 
death  if  they  returned. 

It  appears  from  th6  record  that  this  armed  force  conducted  these 
oflBcers  and  others  across  the  Mississippi  River  and  left  them  in  the  city 
of  Memphis,  Tenn.  Had  they  simply  exiled  the  officers  indicted  for 
drunkenness,  their  conduct  would  have  shown  they  had  lost  confidence 
in  the  court,  or  that  they  did  not  believe  the  indictments  could  be  sus- 
tained. 

It  seems  to  us  that  if  they  were  simply  dissatisfied  with  the  officers 
who  had  been  indicted  they  would  not  have  driven  other  county  oflBcers, 
who  were  not  indicted,  nor  private  citizens  from  the  county. 

The  motive  for  what  thus  took  place  by  this  process  of  deportation 
on  the  12th  day  of  July,  1888,  must  be  sought  in  something  other  than 
a  desire  to  rid  the  community  of  the  indicted  oflBcers.  We  are  of  the 
opinion  that  this  motive  may  be  fouud,  and  for  that  purpose  reproduce 
a  portion  of  the  testimony  appearing  in  the  printed  record,  stating 
what  was  done  on  the  morning  the  trial  was  to  have  taken  place. 

David  Fergerson  (col.),  a  witness  on  behalf  of  the  contestant,  being 
first  duly  sworn,  testified  as  follows : 

Direct  examine : 

Q.  What  is  your  name  ? — A.  David  Fergerson. 

Q.  Where  do  yon  live  ? — A.  Live  now  in  Memphis. 

Q.  Where  did  you  live  at  the  national  election  last  year  f — A.  Memphis,  Tennessee. 

Q.  Where  did  you  live  previous  to  that  ? — A.  Lived  in  Crittenden  County,  Arkansas. 

Q.  What  was  your  business  at  the  time  you  left  Crittenden  County,  Ark.  ? — A.  I 
was  clerk  of  the  circuit  court. 

Q.  How  old  are  you  ? — A.  39  years  old. 

Q.  How  long  have  you  been  a  citizen  of  Crittenden  County  ? — A.  Since  1872. 

Q.  You  served  how  many  times  as  clerk  ? — A.  Three  terms. 

Q.  Please  state  the  time  and  manner  of  your  leaving  Crittenden  County.^-A.  On 
the  morning  of  the  12th  day  of  July  an  armed  mob,  composed  of  over  a  hundred  men, 
surrounded  my  oflSce ;  I  was  in  my  office,  and  my  deputy,  Mr.  Fleming,  here.  The 
mob  ordered  us  to  come  out,  and  told  us  that  some  of  the  white  people  had  got  anony- 
mous letters  ordering  them  to  leave  the  county,  and  they  had  determined  among 
themselves  they  shouldn't  leave ;  that  we  had  to  leave  or  they  hoped  to  meet  us  in 
heaven.  I  told  them  that  I  had  nothing  to  do  with  writing  those  letters ;  didn't 
know  anything  about  them,  and  I  couldn't  go.  They  said  we  ''had  to  go ;  if  you 
don't  we  are  not  responsible  for  you."  The  court  was  in  session,  Judge  Riddick  on 
the  bench,  the  grand  jury  there,  and  I  told  this  armed  mob  that  "  if  we  had  com- 
mitted a  crime,  here's  the  grand  jury  and  the  court ;  indict  us,  put  us  in  jail,  and  try 
ua"  "No  ;  you've  got  to  leave  this  county ;  this  is  a  white  man's  government,  and 
we  are  tired  of  negro  dominations;  we  have  been  planning  this  for  the  last  two  years, 
and  no  more  negroes  or  Republicans  shall  hold  office  in  this  county." 

Q.  Did  you  leave  them  of  your  own  accord? — A.  I  told  them  I  couldn't  possibly 
leave;  I  had  a  bond  there,  and  had  to  protect  my  bondsmen  as  well  as  myself,  and 
Col.  Smith  and  Dr.  Bingham  spoke  up  and  said,  yes,  we'll  have  to  give  him  till  even- 
ing to  get  out ;  I  saw  my  bondsmen ;  they  were  all  there  with  the  guns  in  their 
hands ;  I  saw  them  and  talked  with  them,  and  that  evening  I  left. 

Q.  Were  your  bondsmen  whit«  or  colored  men  ? — A.  They  were  composed  of  white 
and  colored ;  the  white  men  that  was  on  my  bond  was  there  armed. 

Q.  State  whether  there  had  been  any  charges  preferred  in  court  against  you  ? — A. 
I  had  a  charge  preferred  against  me  there  for  drunkenness  in  office,  come  up  for  trial 
that  morning ;  tliey  found  there  was  nothing  in  it  and  took  these  steps  to  get  us  out ; 
said  they  had  to  control  the  offices,  and  only  way  to  control  the  offices  was  to  get  us 
out — by  getting  the  leaders  out  they  conld  control  the  balance. 


FEATHERSTON   VS.    GATE.  81 

Q.  Had  you  ever  had  any  personal  trouble  with  any  considerable  number  of  white 
people! — A.  I  never  did;  in  1886  I  was  elected  without  opposition  as  clerk  of  the 
court. 

Q.  How  ftiany  charges  have  been  preferred  against  you  since  that  time  ?— A.  Been 
11  charges. 

Q.  Upon  how  many  have  you  been  tried  ? — A.  Haven't  been  tried  on  one  ;  I  took  a 
change  of  venue  from  that  county,  because  I  couldn't  get  justice  there,  to  another 
county  in  the  district. 

Q.  State  if  the  bond  you  made  was  accepted  by  the  sheriff. — A.  The  bond  that  I 
offered  was  refused  by  the  sheriff,  and  I  had  to  carry  my  bondsmen  into  open  court, 
and  the  bond  was  approved  by  the  judge. 

Q.  After  having  been  refused  by  the  sheriff? — A.  Yes,  sir. 

Q.  Were  any  of  the  present  officials,  or  the  oflScials  that  were  in  office  at  that  time, 
among  that  mob  ? — A.  Yes,  sir ;  W.  F.  Worner,  sheriff,  Sam  Keel,  clerk,  S.  A.  Martin, 
county  judge,  W.  J.  Harden,  assessor,  C.  E.  Raspberry,  coroner,  A.  H.  Ferguson, 
treasurer. 

Q.  Was  Worner  the  sheriff  at  that  time  ? — A.  Womer  was  sheriff  !>.t  that  time ;  12 
day  of  July,  and  is  now  present  sheriff. 

Q.  Did  he  show  any  right  or  warrant  or  authority  by  which  he  ordered  you  out  of 

the  county  ? — A.  He  did  not. 

»»»♦*#» 

Q.  What  reason  did  they  give  you  for  not  giving  you  a  trial,  when  you  asked  it,  upon 
the  day  that  they  ordered  you  out  of  the  county ;  what  reason  did  they  assign  to  you 
for  that  action  ? — A.  There  was  no  reason  ;  they  said,  "  God  damn  you,  you  got  to  get 
out  of  this  county.  By  God,  you  been  here  too  long ;  this  is  a  white  man's  country, 
and  we  will  control  it.  We  been  waiting  for  two  years  for  thisthing,  and  you  got  to  get 
out."  I  said,  "  Gentlemen,  the  court  is  in  session  and  here's  the  grand  jury."  They 
said,  "  God  damn  that,  you  got  to  get  out." 

Q.  The  circuit  court  was  in  session  ? — A.  Yes.  sir. 

Q.  Was  there  any  effort  made  by  the  circuit  judge  for  the  protection  of  citizens  of 
the  county  that  you  know  of? — A.  None  in  the  least. 

Q.  Did  he  know  this  thing  was  going  on  ? — A.  To  the  best  of  my  knowledge  and 
information  and  belief,  he  did. 

Q.  He  was  not  present  at  the  time,  was  he  ? — A.  While  they  had  us  under  arrest 
the  capt.  of  the  mob  said,  "The  judge  wants  you  to  come  up  to  the  court-house  and 
we  don't  want  him  to  see  us  here  with  these  men  ;  just  carry  them  around  back  of 
the  court-house,  right  under  a  shade  tree."  The  judge  come  up  there  and  called 
court  and  took  a  recess,  and  I  saw  him  standing  in  the  back  door  of  the  court-house 
looking  over  there  where  these  men  were  guarding  myself  and  others. 

Q.  Are  you  satisfied  that  he  saw  you  f — A.  Yes,  sir. 

Q.  Did  you  hear  him  enter  any  protest  against  that  proceeding? — A.  No,  sir;  I 
did  not.  The  only  thing  I  knowed  him  to  do — I  was  indicted,  as  I  told  you  before — 
Judge  Gate  and  Mr.  Adams,  my  attorneys,  they  come  down  to  my  house  to  see  me, 
and  said  that  Judge  Riddick,  if  I  thought  it  necessary,  said  he  would  get  out  a  writ 
of  habeas  corpus  for  me.  I  told  him  no  ;  I  didn't  think  it  necessary,  becausel  wasn't 
under  legal  authoi ity  ;  that  his  court  had  no  jurisdiction  over  an  armed  mob,  I 
paid  Judge  Gate  and  Mr.  Adams  to  defend  me  in  that  indictment  against  me. 

Q.  Did  he  abandon  your  case? — A.  No,  sir,  he  did  not ;  told  me  he'd  stick  by  me  if 
I  wanted  to  go  any  further  in  the  case,  but  he  advised  me  I'd  better  let  it  drop. 
(Printed  record,  page  207-8.) 

The  county  court  clerk,  Furgersou,  it  will  be  seen  closes  his  testi- 
mony by  saying  that  contestee  as  his  counsel  advised  him  (Furgerson) 
that  he  "  had  better  let  it  [the  suit]  drop."  There  was  no  wa>y  to  ''let  it 
drop"  except  by  pleading  "guilty,"  and  that  would  oust  him  from  his 
office,  which  was  one  of  the  objects,  no  doubt,  from  the  proof  in  the 
record,  for  which  the  conspiracy  had  been  formed. 

If  the  contestee  had  nothing  to  do  with  what  transpired  in  Crittenden 
County,  in  July,  his  presence  and  utterances  there  have  placed  him  in 
rather  an  embarrassing  position.  His  advice  to  Furgerson  has  a  sig- 
nificant bearing. 

J.  L.  Fleming  (col.),  a  witness  on  behalf  of  the  contestant,  being  first 
duly  sworn,  testified  as  follows  : 

Q.  What  is  your  name? — A.  J.  L.  Fleming. 

Q.  What  is  your  residence  ? — A.  I  am  a  resident  of  Memphis,  Tennessee. 
Q.  What  were  you  at  that  time  ? — A.  Resident  of  Marion,  Crittenden  County,  Ar« 
kansas. 

H.  Mis.  137 6 


82  FEATHERSTON    VS.    GATE. 

Q.  What  is  your  occupation? — A.  I  yeas  deputy  clerk  under  Mr.  Ferguson,  and 
editor  of  the  Marion  Head  Light. 

Q.  What  is  your  age  ? — A.  29. 

Q.  How  long  have  you  lived  in  Marion,  Ark.? — A.  About  four  years. 

Q.  Did  you  have  to  leave  Marion,  Ark,,  Crittenden  County,  any  time  last  year? — 
A.  Yes,  sir;  on  the  12  day  of  July,  1888,  myself  and  ten  others  were  brought  from 
Marion  to  Mound  City  by  an  armed  mob,  and  put  on  the  ferry-boat  at  Mound  City 
and  sent  over  to  Memphis,  and  guarded  to  Memphis ;  three  of  the  men  came  on  this 
side. 

Q.  How  many  men  were  in  that  mob? — A.  I  don't  know;  probably  a  hundred  or 
more  ;  more  or  less. 

Q.  Whut  were  their  reasons  for  sending  you  out  of  the  county? — A.  Well,  they 
cliiiined  that  several  of  the  white  citizens  had  received  anonymous  letters  saying 
that  they  had  to  leave  Crittenden  County  within  five  days  from  the  time  those  letters 
were  received. 

Q.  Do  yon  know  anything  about  those  letters  at  all  ? — A.  Yes,  sir;  I  know  some  of 
the  citizens  did  receive  such  letters. 

Q.  Do  you  know  who  wrote  them? — A.  I  do  not;  I  didn't  write  any  of  them,  and 
knew  noihlng  of  them  directly  or  indirectly. 

Q.  You  say  you  were  editor  of  a  newspaper? — A.  Yes,  sir. 

Q.  What  wen;  the  politics  of  that  paper? — A.  It  was  a  Republican  paper. 

Q.  Did  you  suffer  any  loss  of  property,  time,  or  money  in  this  exile? — A.  Yes,  sir;  I 
Buliorcd  right  smart  loss  of  money  ;  had  some  property  damaged. 

Q.  Go  on  and  tell  about  the  threats  that  were  made. — A.  Well,  yon  asked  a  ques- 
tion awile  ago  ;  didn't  finish  about  why  we  were  sent  away  ;  they  said  these  letters 
had  been  written  by  us,  myself,  Ferguson,  Dan  Louis,  and  others ;  said  we  were  im- 
plicated, and  for  that  reason  they  came  and  exiled  us  from  the  county. 

Q.  W^ere  there  any  threats  made  towards  you  ? — A.  Yes,  sir  ;  when  they  brought  us 
away  they  said  wo  were  never  to  come  back  to  that  county  any  more,  and  if  we  did 
it  would  be  dangerous;  they  meant,  from  what  they  said,  they  would  kill  us;  that 
was  the  inference  ;  never  to  return  to  Crittenden  County  any  more. 

Q.  You  say  you  have  left  Crittenden  County? — A.  Yes,  sir. 

Q.  Why  did  you  leave  ? — A.  I  left  because  they  sent  me  away,  and  said  I  never 
should  live  there  any  more  :  and  all  of  my  business  had  been  suspended  there  ;  and 
I  had  nothing  to  do  there ;  that's  one  reason  I  have,  and  then,  again,  I  don't  feel 
safe  in  living  there  any  more. 

Q.  You  think  your  life  is  more  or  less  in  danger  if  you  lived  in  Crittenden  County 
now  ? — A.  Yes,  sir ;  I  thinksome  of  those  men  there  would,  under  some  circumstances, 
attempt  to  assassinate  me. 

Q.  Do  you  know  whether  the  Republican  party  of  Crittenden  County,  or  Democrats, 
as  a  rule,  were  intimidated  by  the  armed  men  in  the  last  election  there — the  last  na- 
tional election  ? — A.  Yes.  sir;  at  the  election  in  September,  the  State  election,  they 
■were  directly  under  the  intluence  of  that  shotgun  crowd — Winchester  crowd;  audi 
believe  the  same  influence  was  brought  to  bear  at  the  national  election,  though  it 
may  not  have  been  as  forcible  as  at  tlie  State  election ;  but  I  believe  the  Republicans, 
the  colored  people,  were  under  that  same  influence,  and  they  wouldn't  vote  as  freely 
as  they  had  done  heretofore. 

«  *  »  *  •  _  «  « 

Q.  Yon  say  you  were  exiled  from  Crittenden  County  last  July  ? — A.  Y'es,  sir;  on 
the  12  day  of  last  July. 

Q.  Did  they  accuse  you  of  anything  else,  or  any  of  your  comiianions  in  exile,  of  any 
crime? — A.  They  had  never  accused  me  of  anything;  they  had -Mr.  Ferguson  and 
Judge  Louis  ;  they  had  been  indicted  before  that ;  they  had  been  indicted  for  intox- 
ication in  office ;  that  was  all  against  them.  Myself  they  had  never  accused  of  any- 
thing— never  had  been  convicted  of  any  sort  of  crime,  felony,  or  misdemeanor  either; 
never  have  been  indicted  except  for  these  anonymous  letters,  and  never  had  any  trial 
of  any  sort,  either  criminal  or  civil,  in  that  county.     (Printed  record,  page  195.) 

Why  they  drove  the  Republicans  out  of  the  county. 

William  Royster  (col.j,  a  witness  on  behalf  of  the  contestant,  being 
first  duly  sworn,  testified  as  follows  : 

Q.  What  is  your  name  ? — A.  William  Royster. 
Q.  Where  do  you  live?— A.  Live  in  Memphis  now,  sir. 

Q.  Where  have  you  lived  before  you  came  to  Memphis? — A.  In  Arkansas,  Critten- 
den County,  Marion,  Ark. 
Q.  When  did  you  come  to  Memphis  ? — A.  Come  here  in  September. 
Q.  In  what  year?— A.  1888. 


FEATHERSTON   VS.    GATE.  83 

Q.  How  long  had  you  lived  iu  Arkansas  before  that  ? — A.  About  14  years  ago  on 
the  15th. 

Q.  How  old  are  you  ? — A.  I  reckon  I'm  about  39  or  40  years  old  now,  sir. 

Q.  What  is  your  business  ?— A.  I  used  to  drive  the  stage  there  till  the  Kansas  City 
road  cariiO  through,  and  after  that  I  followed  up  renting  out  horses  and  buggies,  and 
farming  there. 

Q.  Did  you  have  a  home  there  at  the  time  you  left? — A.  I  did. 

Q.  Have  any  other  property  iu  the  county? — A.  Yes,  sir;  I  had  160  acres  of  land. 

Q.  Why  did  you  leave  at  the  time  you  did  ? — A.  I  voted  the  second  or  third  of  Sep- 
tember, and  during  that  dty  they  come  to  me  four  or  five  different  times  to  get  Re- 
publican tickets  and  I  wouldn't  let  them  have  it ;  and  ihat  night  they  gave  me  my 
orders  to  leave  iu  ten  days.  Mr.  Force  came  that  night  and  gave  me  orders  to  leave  ; 
he  come  to  me  setting  on  the  porch  in  front  of  my  house  ;  ho  said  he  had  orders  to  do 
so  ;  I  asked  him  orders  for  what ;  he  said,  "Orders  to  wind  up  your  business  and  leave 
the  county."  I  asked  what  had  I  did;  he  said  all  I  could  against  the  white  people. 
I  said  I  hadn't  done  anything  against  the  white  people  more  than  voted  and  issued 
the  Republican  ticket.  He  said,  "  Well,  you  got  to  leave  or  we'll  kill  you  'cept  heaven 
and  earth  come  together ;  "  I  said,  "  I  ain't  able  to  go."  He  said  I  could  do  as  1  damn 
please,  stay  or  go  ;  but  I'd  find  out  by  waiting.  I  staid  there  till  the  next  Monday 
night ;  the  next  Sunday  night  he  shot  at  one  of  the  neighbors ;  aiud  Monday  morning 
Joe  Randolph  was  down  there  cleaning  his  horses,  and  he  asked  him  how  was  it; 
and  he  said  them  that  shot  at  him  know  who  it  were,  and  he  said  he  had  been  to 
Koyster  and  told  him  to  leave ;  I  told  him  what  the  consequence  was  and  he  had  to 
go  to  Dr.  Bingham  and  ask  him,  and  Dr.  Bingham  was  iu  the  midst  of  30  or  40  when 
the  plot  was  made ;  and  if  he  don't  leave  we  will  kill  him  'cept  heaven  and  earth 
come  together.  I  left  then  ;  I  hurried  and  got  my  clothes  on  ;  that  was  betwixt  12 
and  1  o'clock.  The  train  had  got  there  before  I  got  to  the  depot,  and  I  loft  on  my 
crutches  and  stick,  and  I  went  North  and  stayed  there  three  or  four  days ;  and 
when  I  thought  things  had  gotten  quiet  so  I  could  come  through  the  lines,  I  come 
here  to  Memphis. 

Q.  Do  you  know  what  political  party  Frank  Force  belongs  to  ? — A.  Democrats. 

Q.  Was  the  hostile  demonstrations  over  there  universal  toward  the  colored  peo- 
ple?— A.  Yes,  sir. 

Q.  In  what  way  ? — A,  Using  Winchesters  and  threatening  them,  and  pretty  well  in 
every  respect. 

Q.  Did  many  of  them  leave  there  in  consequence  of  it  * — A.  No  more  than  they  run 
out  of  the  county  as  I  know  of. 

Q.  Did  you  siiffer  loss  in  regard  to  your  property  by  leaving  there  ? — A.  Yes,  sir ; 
after  I  left  they  killed  one  of  my  mules.  I  was  offered  |400  for  the  pair  time  and 
again  ;  and  they  shot  my  bay  more  so  it  couldn't  get  about,  and  my  house  and  things 
has  all  gone  to  destruction.   I  can't  hear  of  any  of  them  at  all  since  I  been  away. 

Q.  Are  you  afraid  to  return  there  now  ? — A.  Yes,  sir. 

Q.  What  act  had  you  committed  that  caused  Mr.  Forest,  as  the  representative  of 
this  organization,  to  threaten  to  kill  you  if  you  didn't  leave  the  county  ? — A.  That 
day  at  my  house,  of  course  I  lived  next  to  the  court-house,  I  issued  tickets  that  day. 
I  were  acquainted  with  the  people  all,  you  know,  and  generally  they  trusted  me  with 
the  tickets ;  Republican  tickets  at  the  State  and  county  elections,  and  I  issued  tickets 
that  day,  and  I  suppose  betwixt  8  and  9  o'clock  along  came  a  young  fellow,  Ben 
Novel,  and  asked  me  for  a  ticket.  I  says,  *'  You  know  you  ain't  going  to  vote  this 
ticket ;  you  want  me  to  give  it  to  you.  I  ain't  got  any  to  spare."  About  five  min- 
utes from  that  Mr.  Cox  come ;  I  told  him  I  ain't  got  tickets  to  spare.  "  Well,  my 
wife  wants  to  see  one."  "  Well,  I  ain't  got  tickets  to  spare;  I  ain't  got  tickets  for 
the  women,  I  need  them  for  the  men,"  and  I  handed  him  a  ticket,  and  he  said,  "  By 
God  you  can't  scare  me  "  I  said,  "No  I  ain't  scared  of  you,"  and  I  turned  to  Louis, 
and  he  said,  "  You'll  rememberthis ;  you'll  need  afavorsome  time."  I  said,  "  I  need 
it  now,"  and  Mr.  Cox  came  back  after  dinner,  again,  for  a  ticket  and  I  wouldn't  let 
him  have  it,  and  about  an  hour  after  that  Jim  Loyd  wanted  one  for  Mr.  Kelley  to 
see,  and  I  said,  "I  ain't  got  no  tickets  for  Mr.  Kelley  now ;  need  .them  for  the  men," 
and  he  went  off  and  made  a  great  bluster,  and  I  kept  the  tickets  till  about  half  an 
hour  before  the  election,  and  he  come  back  for  a  ticket,  and  I  wouldn't  let  him  have 
it,  and  he  said,  "By  God,  you'll  remember  it,"  and  that  night  Mr.  Forest  come  and 
gave  me  my  orders  to  leave. 

Q.  If  you  were  iu  Crittenden  County  would  you  give  this  testimony  you  are  giving 
here  now?— A.  No,  sir;  I  wouldn't  do  it. 

Q.  Why  not  ?— A.  I'd  be  afraid. 

Q.  Afraid  of  what? — A.  Afraid  I'd  get  shot. 

Q.  Do  you  think  the  other  witnesses  would  come  up  and  testify  as  they  have  done 
in  this  investigation?— A.  No,  sir;  they  would  be  afraid  of  the  Winchesters. 

Q.  Who  has  got  possession  of  the  Winchesters ?— A.  The  Democratic  partv's  got 
possession  of  them.    (Printed  record,  page  189-90.) 


84  FEATHERSTOX   VS.    GATE. 

Henry  Biby  (col.),  a  witness  on  behalf  of  contestant,  being  first  duly 
sworn,  deposes  as  follows : 

Q.  What  is  your  name  ? — A.  Henry  Biby. 
Q.  How  old  are  you  ?—  A.  About  26. 

Q.  Where  do  you  live  ? — A.  Been  living  in  Marion  all  my  life,  is  the  county  of 
Crittenden. 

Q.  What  State  ?— A.  Ark. 

Q.  What  is  your  business  ? — A.  Well,  for  the  last  year — I  was  deputy  assessor  for  4 
years. 

Q.  How  long  since  you  left  ? — A.  Been  away  since  the  12th  of  July. 

Q.  Why  did  you  leave  ? — A.  I  was  at  home  making  a  recapitulation  of  assessments 
I  had  made  on  Thursday  morning :  16  men  come  up  and  asked  nie  where  was  Sky- 
more  ;  I  told  them  I  didn't  know ;  Mr.  Jim  Bassett  said  then,  "  It's  a  damn  lie,  I  did 
know,"  and  said,  "  You  come  out,  this  country's  getting  too  small  for  you  edicated 
niggers  and  we  white  folks,"  and  went  on  to  Marion,  and  as  we  passed  the  she lifFs 
office  they  had  a  man  named  Dock  Pointers,  and  the  sheritf  said,  "  Turn  him  loose," 
and  they  taken  us,  and  they  taken  us  on  and  under  the  shade  tree;  they  searched  us, 
and  about  10  o'clock  they  marched  us  off"  a  mile  down  the  Milder  road  toward  Mound 
City,  and  a  wagon  overtaken  us,  and  they  put  us  in  and  carried  us  to  Mound  City ; 
there  we  got  out  and  came  aboard  of  the  boat,  and  9  of  them  got  on  the  boat  with 
Winchesters  and  horses,  and  when  the  boat  landed  at  Hope  Field  1  got  off"  and  3  fol- 
lowed us  to  the  foot  of  Jeffierson  street,  and  then  told  us,  "Now  you  can  go,  you  never 
have  been  escorted  by  a  lot  of  white  gentlemen  before  in  your  life,  its  quite  a  compli- 
ment to  you,  and  unhurt,  but  if  you  ever  come  back  to  Ark.  you  must  abide  by  the 
consequences." 

Q.  What  position  were  you  holding  at  that  time? — A.  Deputy  assessor,  under 
Bucks,  appointed  by  the  county  judge. 

Q.  Had  you  violated  the  law  in  any  way  ? — No,  sir  ;  I  had  been  to  the  upper  end  of 
the  county  a  day  or  two  previous  to  that,  and  came  home  on  summons  by  the  circuit 
court  as  a  witness  in  the  case  of  Billy  Shelton  ;  that's  why  I  was  there  at  court  at 
that  time. 

Q.  What  reason  did  these  armed  men  give  why  they  exiled  you  from  the  State  t — 
A.  At  that  time  they  said  I  was  a  very  prominent  negro  in  society,  business,  either 
belonged  to  several  different  societies,  and  afterwards  they  accused  me  of  being  a  con- 
spirator. 

Q.  Did  you  belong  to  some  societies t — A.  Yes,  sir;  the  Knights  of  Labor  and  Ma- 
sonic. 

Q.  Did  they  teach  you  to  violate  the  law  in  any  way  ? — A.  No,  sir  ;  we  never  met 
and  discnsssed  religious  matters  or  matters  concerning  the  civil  laws. 

Q.  Did  they  teach  you  to  rob  and  steal  and  insult  the  white  people  of  the  country  ? — 
A.  No,  sir  ;  teaches  us  a  better  grade  than  that. 

Q.  You  were  a  member  of  the  Knights  of  Labor  ? — A.  Yes,  sir. 

Q.  And  are  there  some  white  people  members  of  the  Kuights  of  Labor,  too? — A.  I 
suppose  there  are.     A  white  gentleman,  Mr.  C  A.  Miller,  set  us  up,  from  Paragould. 

Q.  Do  you  know  who  Mr.  C.  A.  Miller  was  ? — A.  Organizer  of  the  Knights  of  Labor 
aud  school-teacher  at  Paragould. 

Q.  Do  you  know  how  he  stood  at  Paragould  ?— A.  Mr.  William  Stranges  said  he 
was  a  very  intelligent  man,  very  high  in  the  community  in  which  ho  lived. 

Q.  Was  there  any  reason  at  any  time  why  any  member  of  the  Knights  of  Labor,  a 
white  man,  couldn't  have  come  into  your  lodge  at  anytime  as  a  visiting  member? — A. 
No,  sir;  whileMr.  Stranges  resided  in  Marion  he  very  frequently  visited  whenever  we 
met,  and  othei-s,  and  the  night  that  wo  were  set  up  a  good  many  of  the  prominent 
white  citizens  of  Marion  came  down  to  our  hall  to  listen  to  the  instructions  of  Mr. 
Miller,  and  said  they  didn't  see  nothing  in  it  why  it  shouldn't  be  set  up. 

»»»»#♦■» 

Q:  How  many  were  sent  away  from  there  at  the  same  time  you  were  ? — A.  Nine 
outside  of  myself. 

Q.  Do  you  know  what  charges  were  brought  against  these  9? — A.  No  more  than 
they  were  accused  of  being  accessories,  and  some  have  been  ones  that  is  writing  these 
anonymous  letters. 

Q.  Do  you  know  who  wrote  those  anonymous  letters? — A.  No,  sir;  I  do  not. 

Q.  Had  you  or  your  friends  ever  heard  of  these  anonymotis  letters  until  you  were 
accused  of  having  written  them  f — A.  No,  sir ;  not  before  Tuesday  at  12  o'clock  ;  the 
mail  was  distributed;  the  sheriff  aud  other  citizens  got  letters,  and  I  heard  some  of 
(hem  say  some  of  the  white  citizens  had  gotten  warning  letters  to  leave  the  county 
in  5  days;  well,  it  was  a  very  serious  charge,  and  a  good  many  prominent  colored 
men  at  once  thought  that  it  was  expedient  that  they  would  draw  up  a  resolution  or 
something  offiering  to  the  judge  on  Wednesday  that  he  would  instruct  the  grand  jury 
to  investigate  the  matter  and  punish  the  guilty  ones ;  and  Judge  Lewis,  he  presented 


FEATHEESTON   VS.    GATE.  85 

the  petition ;  the  judge  highly  complimented  it ;  thought  everything  was  all  right, 
the  court  adjourned  that  evening :  they  all  met  in  the  court-house  and  Thursday 
about  daylight  about  125,  more  or  less,  armed  with  Winchesters,  came  to  Marion,  and 
about  9  o'clock  they  came  to  my  house ;  I  live  in  the  suburbs  with  my  mother ;  a 
place  she's  botight  there. 

Q.  Did  you  know  the  men  that  had  those  Winchester  rifles? — A.  Pretty  well  all  of 
them  at  that  time,  but  since  I've  been  here  I've  forgotten  a  great  deal,  but  the  prom- 
inent one  of  them  I  know. 

Q.  You  saw  these  men  with  the  Winchester  rifles? — A.  Yes,  sir;  I  seen  them  ;  and 
I  can  name  them  that  come  over  to  Memphis  with  me  ;  I've  got  a  list  of  all  of  them 
where  I'm  stopping  at. 

Q.  When  they  came  to  yon  did  they  claim  to  represent  anj'  legal  authority ;  did 
they  present  any  papers  showing  any  authority  for  that  sort  of  matter  ? — A.  No.  sir. 

Q.  Did  they  claim  to  be  acting  as  militia? — A.  No,  sir. 

Q.  What  was  it  that  made  you  go  ? — A.  I  didn't  know  what  was  the  matter. 

Q.  Under  those  circumstances  why  did  you  leave  the  county  ". — A.  The  reason  why 
I  It-ft  the  county  was  because  I  saw  that  I  had  no  protection,  and  that  if  1  stayed 
there  there  was  two  chances  to  one  that  I  might  be  killed;  then  they  ordered  me  to 
leave.  The  sheriff  was  in  the  crowd  and  told  them  to  take  me  on,  that  I  was  one  of 
them,  and  he  went  on  back  in  his  office  then.  So  then,  on  the  second  Monday  in  Feb. 
I  went  over  there  for  trial,  and  Tuesday  it  was  I  went  for  trial;  Jan.  it  was,  and  I 
gave  $250  bond  and  went  for  trial,  and  the  prosecuting  attorney  continued  my  case, 
and  the  evening  he  continued  Col.  J.  F.  Smith  was  sitting  in  front  of  me,  and  he  turned 
back  and  whispered,  "  Henry,  I  think  its  best  for  you  to  get  on  the  train  and  leave 
here,  because  some  of  these  mischievous  white  boys,  or  some  one  may  whip  around 
and  hurt  you  ;  "  and  under  his  advice  I  taken  the  first  train  coming  for  Memphis  and 
been  here  ever  since. 

Q.  Who  was  it  gave  you  that  advice? — A.  Col.  J.  F.  Smith. 

Q.  Have  you  since  gone  back  and  been  tried? — A.  No,  sir;  it  was  continued  till 
July. 

Q.  You  haven't  yet  been  tried  ? — ^A.  No,  sir. 

Q.  Had  you  at  any  time  had  any  special  trouble  with  any  number  of  the  white 
citizens  over  there? — A.  No,  sir;  some  of  them  that  morning  prevailed  that  I  should 
stay,  and  some  said  I  was  a  quite  peaceable  boy,  and  others  says,  no,  he  must  go 
just  so. 

Q.  Have  you  ever  had  any  principal  diflftculty  with  any  of  the  white  people  ? — A. 
No,  sir ;  I  was  raised  there  among  them,  and  never  did  have  any  difficulty  with  any 
of  them. 

Q.  Had  you  considered  them  your  friends  in  a  business  way  ? — A.  Yes,  sir;  I  gave 
them  the  honor  that  was  due  them. 

Wash.  Dever  (col.),  a  witness  oq  behalf  of  the  contestant,  being  first 
dulj'  sworn,  deposes  as  follows : 

Q.  What  is  your  name  ? — A.  Wash,  Derver. 

Q.  Where  do  you  live? — A.  I  live  here  now  ;  I  used  to  live  in  Crittenden Coonty, 
Marion. 

Q.  What  State  ?-A.  State  Ark. 

Q.  How  old  are  you  ?— A.  36. 

Q.  How  long  had  you  lived  there  before  you  left  ? — A.  About  25  years. 

Q.   When  did  you  leave  ?— A.  On  the  12th  day  of  July,  '88. 

Q.  Did  you  leave  of  your  own  accord? — ^A.  No,  sir. 

Q.  Why  did  you  leave  ?— A.  I  was  told  by  the  sheriff  to  leave  there ;  ifldidn'tl'de 
be  killed  on  the  12th  morning  of  July. 

Q.  Had  you  committed  any  crime? — A.  Nothing  at  all,  sir. 

Q.  Did  you  leave  ?— A.  Yes,  sir. 

Q.  You  say  the  sheriff  told  you  if  you  didn't  leave  there  yon  would  be  killed  ?— A. 
Yes,  sir;  he  told  me  that  morning  that  he  found  my  name  to  one  of  the  notices  written 
to  the  white  people  that  they'd  have  to  leave  there  in  5  days,  and  if  I  didn't  leave 
that  morning  I  would  be  killed.    - 

Q.  Did  you  leave  by  yourself  ?— A.  No,  sir;  me  and  F.  T.  Moore  left  in  company 
together. 

Q.  Did  you  see  any  armed  men  over  there  at  that  time? — A.  Yes  sir. 

Q.  Whereabouts  were  they  ?— A.  They  were  in  the  court-house  yard;  there  was  a 
big  crowd  in  the  court-house  yard,  and  then  Dr.  Barton  and  Dr.  Bingham  went  to 
my  house,  looking  for  me,  with  their  Winchester  rifles. 

Q.  How  many  was  in  the  crowd  in  the  court-house  yard? — A.  It  seemed  tome 
theje  was  75  or  100  men ;  all  was  armed ;  all  had  Winchesters,  except  Chase ;  he  had 
a  double-barrel  shotgun. 

Q.  What  was  the  object  of  that  meeting ;  do  you  know  ?— A.  No  more  than  what 


86  FEATHEPSTON  VS.    CATE. 

they  done ;  they  went  in  there  and  marched  out  "Fergason  and  Fleming  and  Ramsey 
and  Hunt  and  Fergason  again :  that  was  what  1  saw ;  and  stood  them  up  side  of  the 
court-house  and  searched  them. 

Q.  Then  what  did  they  do  ? — A.  Then  marched  them  from  there  to  the  mayor's 
house,  north  of  the  court-house,  and  set  them  under  trees,  and  I  saw  them  running 
around  looking  for  me,  and  I  went  off  and  went  down  iu  a  field  I  was  cultivating 
down  there. 

Q.  Were  you  frightened  T— A.  Yes,  sir ;  and  that  time  I  was  pretty  badly  fright- 
ened. 

Q.  Did  they  make  these  other  men  leave  the  county  ?— A.  Yes,  sir ;  made  them  all 
leave. 

Q.  Were  they  men  of  family? — A.  Yes,  sir;  most  all  of  them. 

Q.  Did  they  have  anv  property  there  ? — A.  Yes,  sir ;  all,  except  some  few. 

Q.  Did  they  have  any  crops  ? — A.  Yes,  sir. 

Q.  Were  the  crops  injured  on  account  of  their  leaving? — A.  Yes,  sir;  all  destroyed. - 

Q.  Did  you  have  any  property  there  T — A.  Yes,  sir. 

Q.  Was  it  destroyed  f — A.  Yes,  sir. 

Q.  You  say  you  are  living  here  now  » — A.  Yes,  sir. 

Q.  Are  you  still  afraid  to  return  ? — A.  Yes,  sir. 

Q.  Do  you  think  if  you  returned  your  life  would  he  in  danger  ? — A.  Yes,  sir  ;  they 
told  me  that  several  times. 

Q.  Are  the  others  exiled  with  you  still  living  here  ? — A.  Yes,  sir ;  afraid  to  go  back. 
I  don't  know  any  that  has  gone  back,  except  Dan.  Lewis;  he  goes  over  there  occa- 
sionally. 

Q.  Have  you  ever  been  convicted  of  any  infamous  offense  before  the  law  ? — A.  No, 
sir. 

Q.  Ever  been  accused  of  anything  before  the  law  previous  to  that  T — A.  No,  sir. 

Q.  Have  yon  a  family  ? — A.  Yes,  sir ;  wife  and  six  children ;  my  wife  is  laying  very 
low  now.  I  had  a  lot  and  a  nice  orchard  there,  and  my  trees  is  all  being  destroyed 
nearly ;  I  had  about  90  acres  in  cultivation  that  I  was  running,  and  I  had  some  hogs 
and  cows  and  house  furniture,  and  everything,  it  was  all  destroyed. 

Q.  Was  the  property  of  these  other  men  destroyed' — A.  Well,  it's  been  injured; 
pretty  weU  all  destroyed ;  no  good. , 

Q.  Do  you  belong  to  any  secret  societies  f — A.  Yes,  sir. 

Q.  What  are  they? — A.  I  belong  to  the  Masonic  order  and  the  Knights  of  Labor. 

Q.  Do  you  think  that  the  people  who  made  you  leave  feared  anything  from  your 
hands  as  to  their  lives  or  property  at  the  time  you  left  ? — A.  I  know  they  didn't ;  no, 
sir.  I  lived  there  over  25  years  with  them,  perfectly  peaceable;  never  had  no  difiB- 
culty  with  them  at  all. 

Q.  Why  Sid  they  make  yon  leave  if  they  didn't  fear  anything? — A.  'I  only  think  it 
was  a  political  movement;  they  wanted  to  take  all  the  offices  there  was  in  the 
county. 

Q.  Were  any  men  in  this  crowd  that  made  you  leave — were  any  of  them  officials  at 
that  time  holding  oflSce  there  ? — A.  Yes,  sir ;  the  sheriff  was  an  official ;  Dr.  Bingham 
was  nothing  but  a  Dr.  and  Dr.  Barton  was  a  Dr.,  and  Martin  was  judge,  and  I  think 
that's  about  all. 

Q.  You  say  that  you  think  that  your  exile  from  there  was  political  ? — A.  Yes,  sir. 

Q.  What  political  party  do  you  belong  to  ? — A.  Eepublican  party. 

Q.  When  they  ordered  you  out  of  the  county,  did  they  mention  by  what  authority 
they  did  it  ? — A.  No,  sir;  all  the  sheriff  said  to  me,  we  find  your  name  to  one  of  those 
notices,  and  you  must  leave  here  to-day,  don't,  you'll  be  killed.  And  I  asked  him  at 
that  time  why  he  wanted  to  drive  me  out  of  the  county  ;  I  said  the  court's  in  session 
here,  and  if  1  violated  the  law  or  wrote  any  notices,  why  don't  you  try  me  to-day. 
He  says,  "Well,  we  are  going  to  take  the  law  in  our  hands  to-day."  That's  what 
the  sheriff  said.  In  a  few  moments  1  went  over  home,  and  at  home  I  saw  them  all  go 
into  the  clerk's  office,  and  I  started  to  the  clerk's  office,  and  I  taken  another  uotiun 
and  went  to  the  north  part  of  the  court-house,  when  I  went  back  of  the  court-house,- 
I  went  around  that  way,  and  they  went  to  my  house  looking  for  me,  and  I  just  come 
right  on  around  and  went  across  the  R.  R.  here  into  my  field  ;  I  stayed  across  the  R. 
R.  till  I  saw  them  march  all  these  men  ont,  then  I  went  in  the  field  and  they  come 
on  down  there  hunting  me,  and  I  stayed  there  that  morning  till  1  o'clock,  and  they 
rambled  over  my  corn  and  cotton,  everywhere,  took  it  row  by  row,  and  stayed  there 
till  3  o'clock  in  the  morning,  and  when  the  3  o'clock  train  came  along  I  pitched  out 
for  Memphis. 

Q.  You  say  they  claim  yourname  was  to  one  of  those  letters? — A.  Yes,  sir;  and  I 
asked  Col.  Smith  that  morning  to  let  me  see  the  letter  ;  he  said  he  didn't  have  it, 
Mosby  had  it;  and  I  a.sked  him  to  let  me  see  it,  and  he  claimed  that  Berry  had  it,  so 
I  never  did  get  to  see  it. 

Q.  They  never  did  show  you  the  letter  they  claimed  you  wrote  ? — A.  Never  did. 
(Printed  record,  page  224.) 


FEATHEESTON   VS.    CATE.  87 

David  Furgeson,  in  speakiog  of  the  condition  of  the  county  prior  to 
the  12th  of  July,  1888,  testified : 

Q.  Had  the  Republicans,  while  in  authority,  shown  at  any  time  a  disposition  to 
treat  the  white  people,  or  the  Democrats  in  this  way,  unfairly,  as  they  believe  that 
they  are  now  being  treated  ? — A.  No,  sir ;  on  the  contrary,  we  always  divided  all 
offices  with  them. 

■»#*•«»• 

Q.  How  many  of  the  offices  had  the  Republicans,  prior  to  that  time,  accorded  the 
Democrats? — A.  They  had  accorded  the  Democrats  the  sheriff,  treasurer,  and  sur- 
veyor, county  officers. 

Q.  You  had  what  is  generally  known  in  Arkansas  as  a  fusion  ticket  ? — A.  Yes,  sir. 

Q.  Your  vote  was  about  five  to  one,  was  it? — A.  About  six  to  one. 

Q.  Had  you  seen  fit  to  have  exacted  all  the  offices  with  all  of  the  machinery  in 
your  hands  at  that  time,  would  it  have  been  possible  for  the  white  people  or  the  Dem- 
ocrats to  have  had  a  single  office  in  the  county? — A.  It  would  have  been  impossible 
for  them  to  have  had  a  single  office  in  the  county ;  if  we  had  exacted  all  the  offices, 
we  could  have  elected  every  man  in  that  county. 

45.  How  long  had  this  harmonious  feeling,  represented  by  the  fusion  ticket,  existed 
between  the  Democrats  and  the  Republicans  of  that  county  ? — A.  Ever  since  1880. 

Q.  For  8  years  ? — A.  Yes,  sir. 

Q.  Then  I  would  like  for  you  to  state  what  seemed  to  be  the  desire  of  the  leaders 
of  this  mob  so  far  as  future  arrangements  for  the  offices  were  concerned  ? — A.  Only 
desire  of  the  mob  was,  and  the  only  intention  was,  to  get  control  of  the  county  so 
they  could  occupy  and  fill  the  offices. 

Q.  With  what  proportion  of  votes  did  they  desire  to  make  this  control? — A.  About 
one  to  six.     (Printed  record,  page  208-9.) 

George  Hendley,  in  speaking  of  the  demands  of  the  negroes,  testi- 
fied: 

Q.  What  do  the  negroes  ask  of  the  Democratic  party  in  the  way  of  elections  ? — A. 
Only  ask  for  fair  elections,  and  the  enforcement  of  justice  and  law.  (Printed  record, 
page  188.) 

E.  D.  Sanders,  in  speaking  of  why  the  Eepublican  officials  were 
driven  out,  testified : 

Q.  How,  then,  do  yon  account  for  the  action  of  a  part  of  those  farmers  during 
the  past  election  and  just  prior  to  the  election  ? — A.  Well,  sir  it  was  simply  politics 
at  the  ground  of  it,  and  there  was  a  few  colored  men  there  who  held  office  and  all  of 
them  admitted  made  good  officers;  they  told  me  so  frequently  ;  well,  they  couldn't 
beat  them  and  they  determined  to  just  put  them  out  by  force  and  take  the  office  in 
opposition  to  the  Republican  party,  and  it  is  chiefly  owing  to  the  influence  of  un- 
scrupulous politicians  determined  to  advance  their  personal  interests  to  the  disre- 
gard of  the  great  body  of  the  people. 

Q.  Is  this  action  of  these  few  politicians  indorsed  by  the  better  whii-e  element  of 
Crittenden  County  ? — A.  It  is  not;  it  is  the  result  of  a  political  ring  determined  to 
advance  personal  interests,  regardless  of  the  material  benefit  of  the  population. 
(Printed  record,  page  201.) 

Had  the  exiling  been  confined  to  persons  indicted  it  would  have 
indicated,  as  already  said,  a  want  of  confidence  in  the  courts.  But  it 
did  not  stop  with  exiling  the  indicted  county  officers.  On  the  contrary 
it  extended  to  county  officers  not  indicted  and  to  persons  who  were  not 
county  officers.  In  no  instance  was  a  Democrat  driven  out,  and  in 
every  instance  the  exiled  is  found  to  have  been  either  a  member  of 
"  The  Wheel,"  Union,  or  Knight  of  Labor,  or  Republican  party. 

J.  P.  Broadenax,  after  speaking  of  the  exiling  of  the  county  assessor, 
testified : 

J.  P.  Broadenax  (col.),  a  witness  on  behalf  of  the  contestant,  being 
first  duly  sworn,  testified  as  follows : 

Q.  Where  do  you  live  ? — A.  Jericho,  Arkansas ;  Crittenden  County. 

Q.  How  long  have  you  lived  there  ?— A.  I've  been  there  in  that  county  about  ten 
years. 

Q.  What  is  your  occupation  T — A.  Farming  and  mcrchamlising,  and  I'm  postmaster 
of  the  town. 

Q.  How  old  are  you  t — A.  31  years  of  age;  will  be  March  6th. 


88  FEATHERSTON   VS.    CATE. 

Q.  I  want  to  know  if  you  voted  at  the  election  in  Noyember  ? — A.  I  did,  sir. 

Q.  At  what  voting  precinct?— A.  Bradley's. 

Q  Did  you  tiear  the' result  of  the  vote  announced  that  evet.ing? — A.  No,  sir;  1 
did  not. 

Q.  There  was  an  election  held  there  regularly  ? — A.  Yes,  sir. 

Q.  Did  you  know  the  judges  of  election? — A.  I  did  not,  sir;  I  did,  too,  I  think; 
some  of  them. 

Q.  Do  yoH  know  of  an  organized  body  of  men  in  Crittenden  Connry  armed  with 
Winchester  rifles? — A.  I've  seen  some  there  with  Winchester  rifles. 

Q.  Do  you  know  anything  of  the  operations  of  those  men  there  last  July  ? — A. 
Some  operations  1  know,  sir. 

Q.  State  what  you  know  about  that. — A.  What  I  know,  sir,  I  was  on  a  train,  on  one 
coming  down,  and  I  seen  about  30  or  40,  probably  more,  at  Marion,  Arkansas. 

Q.  How  long  did  the  train  stop? — A.  Stopped,  I  reckon,  ten  or  fifteen  minutes;  about 
that  time. 

Q.  State  what  yon  saw  them  do. — A.  I  seen  them  bring  Assessor  Rooks  to  the  train 
and  put  him  on,  and  two  or  three  more  men  from  our  place  down  there,  and  they  crowded 
them  together  on  the  train  and  left;  O.  W.  Mychem  was  one  ;  I  don't  remember  jnst 
now  who  the  others  were,  but  there  was  several  of  them, 

Q.  Mr.  Rooks  was  the  assessor  of  your  county? — A.  Yes,  sir. 

Q.  Did  he  act  as  though  he  was  leaving  of  his  own  accord  on  a  pleasure  trip  ? — A, 
No,  sir;  he  did  not;  he  left  without  his  accord,  I  think. 

Q.  Did  you  hear  them  say  anything  to  him  ? — A.  I  heard  them  tell  him  to  get  on 
and  leave. 

Q.  He  didn't  get  on,  did  he  ? — A.  Yes,  sir. 

Q.  Did  you  see  him  as  he  came  down  on  the  train  ? — A.  He  wasn't  on  the  train,  he 
got  on  at  Marion. 

Q,  You  didn't  come  on  to  Memphis  then  ? — A.  Yes,  sir;  I  did. 

Q.  On  the  train  with  him  ? — A.  Yes,  sir. 

Q.  Did  you  talk  to  him  any  as  you  came  down  ? — A.  I  did. 

Q.  What  did  he  say? — A.  I  asketl  him  what  that  meant;  he  said  he  didn't  know; 
they  ordered  him  to  leave  and  not  return  any  more,  and  didn't  give  him  time  to  get 
his  clothes  or  nothing  else. 

Q.  How  many  were  following  him  wheu  you  saw  him? — A.  I  suppose  there  was 
fifteen  or  twenty  ;  I  reckon  about  that  many  ;  I  was  a  little  excited  myself;  seemed  to 
he  about  that  many,  though. 

Q.  He  came  on  across  the  river  with  you  ? — A.  Yes,  sir. 

Q.  Did  he  bring  his  family  with  him  ? — A.  No,  sir. 

Q.  Do  yon  know  how  long  he  was  kept  out  of  the  county  ?— rA.  I  do  not,  sir. 

Q.  Did  those  gentlemen  seem  to  be  excited  themselves  ? — A.  Well,  no,  sir ;  not 
very  much  ;  they  seemed  to  be  mad.     (Printed  record,  page  196.) 

J,  P.  Broadeuax,  in  speaking  of  the  Republican  member  of  the  legis- 
lature, testified: 

Q.  The  ex-member  of  the  legislature  there,  Mr.  Odom,  your  neighbor,  did  he  live 
near  you  ? — A.  He  lived  about  three  miles  from  me. 

Q.  Did  you  know  him  well  ? — A.  Yes,  sir. 

Q.  Had  there  ever  been  any  complaint  in  the  courts  against  him  ? — A.  None  that  I 
know  of. 

Q.  Was  he  a  good  business  man — considered  so  in  the  country  ? — A.  He  was,  sir; 
seemed  to  be  a  nice  man.  He  was  prospering,  and  to  my  notion  was  on  good  terms 
with  his  white  neighbors,  Mr.  Martin  and  others.  He  has  made  some  properly,  and 
represented  the  county  in  the  legislature.  I  had  heard  no  comi^laint  lu.ade  of  him  as 
a  member  of  the  legislature  ;  they  said  he  made  a  good  one,  both  white  and  colored. 

Q.  Was  he  ordered  out  of  the  county? — A.  I  don't  know  that  he  was.  He  told  me 
himself  he  was  ordered  to  leave,  and  some  went  out  to  his  house  after  him  with  Win- 
chesters. 

Q.  Did  he  leave  ? — A.  He  did,  sir. 

Q.  Don't  you  know  as  a  matter  of  fact  he  did  come  back  there  some  time  in  the 
night? — A.  Yes,  sir;  I  do. 

Q.  Have  you  ever  heard  of  any  charge  preferred  against  him  in  court  in  any  way  ? — 
A.  Well,  I  have  since  he  went  away. 

Q.  None  before  that  ? — A.  None  that  I  know  of,  sir. 

Q,  Had  he  ever  been  tried? — A.  Yes,  sir. 

Q.  Sent  to  the  penitentiary  ? — A.  No,  sir ;  he  was  acquitted,  I  heard.  (Printed 
record,  page  197.) 

J.  W.  Wymme,  in  speaking  on  this  subject,  testified : 

Q.  Did  they  drive  any  private  citizens  out  of  the  county  except  the  officers  ? — A. 
Well,  yes,  sir ;  driven  out  several  besides  those  was  in  office. 


FEATHERSTON   VS.    GATE.  89 

Q.  Did  these  men  have  families  ? — A.  Some  of  them  did,  sir. 

Q.  Did  they  own  property  there?— A.  Yes,  sir.     (Printed  record,  page  204). 

E.  Y.  Logan,  on  this  subject,  testified : 

Q.  Were  there  any  colored  people  aside  from  these  four  officers  exiled  ? — A.  Oh, 
yes. 

Q.  How  many  ?— A.  Some  12  or  15  were  exiled.     (Printed  record,  page  219). 

In  determining  the  object  of  a  conspiracy  the  law  is  that  you  may 
refer  to  the  acts,  words,  and  conduct  of  the  conspirators  to  fathom  and 
ascertain  its  existence  and  purpose,  intent,  etc.  It  is  apparent  from 
the  evidence  that  a  conspiracy  existed  and  that,  the  conspirators  had 
made  up  their  minds  to  wrest  the  political  control  of  Crittenden  County 
from  the  Kicpublicans  who  had  held  it  for  many  years. 

This  could  not  be  done  by  obtaining  a  majoiity  of  the  votes,  for  it 
contained  a  Republican  majority  of  at  least  2,000,  and  there  was  no 
dissension  in  the  party. 

By  examining  the  statutes  of  Arkansas  in  relation  to  elections,  it 
will  be  found  that  the  county  judge,  the  county  court  clerk,  and  the 
sheriff  are  important  factors  in  conducting  elections. 

In  the  county  judge  is  vested  the  appointment  of  all  the  judges  of 
election.  The  clerk  creates  the  county  board  of  canvassers,  and  the 
sheriff,  through  his  deputies,  at  every  poll,  is  a  power  for  good  or  evil 
— they  can  faithfully  execute  the  law  and  protect  the  ballot-box,  or  they 
can  wickedly  violate  the  law  and  debauch  the  suffrage.  That  the  con- 
spirators seized  upon  and  obtained  these  offices  is  not  denied.  It  there- 
fore becomes  pertinent  to  inquire,  as  a  means  of  ascertaining  the  pur- 
pose of  the  conspiracy,  whether  the  power  of  these  offices  was  exer- 
cised in  accordance  with  the  law,  or  as  a  means  to  aid  the  conspiracy 
to  place  the  county  under  the  political  control  of  about  one-sixth  of  its 
legal  voters. 

For  this  purpose  we  will  now  examine  the  laws  of  Arkansas  relating 
to  elections,  and  after  quoting  the  law,  try  to  ascertain  whether  it  was 
complied  with  in  good  faith. 

HOW  AND  BY  WHOM  JUDGES  ARE  APPOINTED.  ' 

Sec.  2654.  The  county  court,  at  its  last  term  held  more  than  thirty  days  hefore  any 
general  election,  shall  appoint  three  discreet  persons,  in  each  township,  having  the 
qualifications  of  electors,  to  act  as  judges  of  election  within  the  township  (Mans- 
field's Digest  of  Arkansas.) 

Under  this  provision  the  judges  of  election  must  be  appointed  at  the 
July  term  of  the  county  court.  It  was  in  July  the  Democrats  exiled  the 
Republican  county  judge,  with  others. 

JUDGES  SHALL  BE  OF  DIFFERENT  POLITICAL  PARTIES. 

Sec.  2757.  The  judges  of  election  appointed  by  the  county  court,  or  chosen  by  the 
assembled  electors,  under  the  provisions  of  this  act  shall,  if  practicable,  be  from 
different  political  parties,  so  that  each  party  may  be  represented,  and  they  shall,  in 
addition  to  the  qualifications  required  by  the  constitution  and  this  act,  be  able  to 
read  and  write.    (Mansfield's  Digest  of  Arkansas.) 

At  the  time  the  Republican  county  judge  was  exiled,  he  had  ap- 
pointed the  judges  of  election,  according  to  law,  so  that  each  political 
party  was  represented. 

After  the  exiling  of  the  Republican  judge  and  the  office  had  been 
seized  and  appropriated  by  the  Democrats,  the  Democratic  county 
judge,  who  had  come  into  possession  of  the  office  by  reason  of  the  con- 
spiracy, revoked  these  appointments,  and  appointed  all  of  the  judges 
of  election  from  the  Democratic  party. 


90  '  FEATHERSTON   VS.    CATE. 

Wash  Deaver,  ia  the  course  of  his  testimony,  states  this  significant 
fact: 

Q.  I  waut  to  know  if  prior  to  the  time  of  your  being  exiled,  and  Judge  Lewis,  the 
county  judge,  being  exiled,  if  he  had  appointed  the  judge  of  election  for  the  ensning 
election  ? — A.  Yes,  sir ;  he  had. 

Q.  Had  the  notice  of  that  fact  been  given  to  sheriff f — A.  Yes,  sir;  put  in  the  sher- 
rjff's  box  in  the  clerk's  office. 

Q.  Had  Judge  Lewis  complied  with  the  law  in  Ark.,  by  representing  all  political 
parties  among  the  judges? — A.  Yes,  sir. 

Q.  Do  you  know  whether  or  not  those  judges  were  afterwards  changed  ? — A.  Yes, 
sir. 

Q,  How  do  you  know  it.f — A.  I  know  it  from  the  fact  that  Mr.  Martin  told  me  so, 
the  judge  who  now  holds  the  position,  and  I  know  that  the  men  I  know  were  ap- 
pointed didn't  serve. 

Q.  You  say  Judge  Lewis  appointed  some  Dem.  at  each  voting  place  T — A.  Yes,  sir. 

Q.  Complied  with  the  law  ? — A.  Yes,  sir. 

Q.  What  is  the  general  impression  of  the  reason  that  prompted  Judge  Martin  for 
making  the.  changes  in  the  judges  of  election  ? — A.  To  count  the  votes  there  was  ap- 
pointed such  men  as  he  knew  would  count  the  vote  for  them. 

Q.  Do  you  know  in  the  whole  county  among  your  acquaintances  of  a  single  Rep. 
who  served  as  judge  of  the  election  in  Crittenden  County  in  the  last  State  and  Na- 
tional election? — A.  I  don't  know  a  single  one,  except  one  or  two  precincts  where 
they  had  to  arrange  the  election  themselves,  wherein  the  absence  of  the  regular 
judges,  the  voters  had  to  select  judges  of  their  own.     (Printed  record,  page  224.) 

All  judges  of  election  Democrats  in  the  county. 

15.  D.  Sanders,  in  speaking  of  the  political  status  of  the  judges  of 
election  in  Crittenden  County,  testified  : 

Q.  I  would  like  to  ask  whether  the  judges  of  election  throughout  the  county,  as  a 
rule,  Democrats  or  Republicans,  or  divided? — A.  They  were  all  Democrats. 

Q.  Does  the  law  require  in  Arkansas  that  both  political  parties  shall  be  repre- 
sented by  judges  of  election  in  various  elections  ?-:-A.  It  does. 

Q.  What  is  your  impression  of  the  reason  the  law  being  violated,  and  almost  all 
the  judges  iu  the  entire  county  being  selected  from  the  Democratic  ranks  ? — A.  Well, 
that  was  very  plain  to  me.  They  could  defraud  the  Kepublicau  party  out  of  their 
votes.     (Printed  record,  page  200.) 

It  is  not  explained  why  it  was  that  Judge  Lewis  could  find  two  Ee- 
publicans  in  each  township  who  were  fit  to  be  judges  of  election  and 
Judge  Martin  could  not  find  any. 

COUNTY  COURT  TO  PROCURE  BAIXOT-BOXE8. 

Sec.  2676.  It  shall  be  the  duty  of  the  county  court  to  provide,  at  the  expense  of 
the  county,  a  good  and  sufficient  ballot-box,  with  lock  and  key,  for  the  several  town- 
ships or  places  of  voting  in  their  respective  counties  for  the  safe-keeping  of  the 
ballots,  etc.     (Mansfield's  Digest  of  Arkansas.) 

SHERIFF  TO  DELIVER  BALLOT-BOXES  TO  JUDGES. 

Sec.  2677.  It  shall  be  the  duty  of  the  sheriff  in  the  several  counties  in  this  State  to 
deliver  to  one  of  the  judges  of  election  in  each  township  the  ballot-boxes  so  provided 
by  the  county  court.     (Mansfield's  Digest  of  Arkansas.) 

CLERK  TO  DELIVER  BLANK  POLL-BOOKS  TO  SHERIFF. 

Sec.  2663.  It  shall  be  the  duty  of  the  clerk  of  the  county  court  of  each  county,  at 
least  twenty-five  days  before  each  general  election  and  ten  days  before  each  special  elec- 
tion, to  make  out  and  deliver  to  the  sheriff  of  his  county  two  blank  poll-books  for 
each  township,  properly  laid  off  in  columns,  with  proper  captions  and  forms  of  oaths 
and  certificates  attached  thereto. 

SHERIFF  TO  DELIVER  POLL-BOOK  TO  THE  JUDGES. 

Sec.  2666.  It  shall  be  the  duty  of  the  sheriff  forthwith  to  deliver  such  books  to 
the  judges  of  election  within  their  respective  townships.  (Mansfield's  Digest  of  Ar-i 
kaosas.) 


PEATHERSTON   VS.    CATE.  91 

Instead  of  the  county  court  procuring  the  ballot-boxes,  as  the  law 
requires,  the  Democratic  sheriff  procured  fraudulent  ballot-boxes,  one 
of  which  is  produced  in  evidence  in  this  case. 

Instead  of  delivering  the  poll-books,  as  required  by  law,  for  the  No- 
vember election,  he  neglected  to  perform  that  duty,  but  left  that  matter 
to  the  wisdom  and  discretion  of  the  Democratic  sheriff. 

How  far  and  how  well  he  performed  his  work  the  testimony  very  ex- 
plicitly shows: 

E.  P.  James  (white),  a  witness  on  behalf  of  the  contestant,  being  first 
duly  sworn,  testified  as  follows : 

Direct  examination : 

Q.  How  old  are  yoa? — A.  47  years  old  the  11th  of  this  month. 

Q.  You  are  a  citizen  of  what  county? — A.  Shelby  County. 

Q.  State  of  Tennessee? — A.  Yes,  sir. 

Q.  We  want  to  know  if  you  have  ever  seen  a  box  similar  to  the  box  that  is  marked 
as  Exhibit  "  A  "  in  a  previous  deposition,  and  is  now  before  you,  and  forms  a  part  and 
parcel  of  the  testimony  in  this  case  ? — A.  Yes,  sir. 

-  Q.  Will  you  please  state  what  you  know  with  regard  to  that  box,  and  your  con- 
nection with  it  ? — A.  I  know  that  we've  made  a  great  many  boxes  of  that  pattern — 
that  kind  ;  in  fact,  I  think  we  made  that  one. 

Q.  We  want  to  know  if  you  have  ever  made  any  that  were  shipped  to  Marion,  Ar- 
kansas, in  Crittenden  County? — A.  We  made,  I  believe  it  was,  21  boxes  and  shipped 
to  the  sheriff  of  Crittenden  County,  W.  F.  Werner,  at  Marion,  Ark. ;  they  were  or- 
dered by  Mr.  Werner  and  charged  to  him,  I  know  that. 

Q.  Shipped  on  what  day  ? — A.  August  silst,  1888,  as  seen  on  page  lOy,  ship  book. 

Q.  How  many  boxes  ? — A.  21. 

Q.  Did  you  know  anything  of  his  oflScial  position  at  that  time? — A.  I  didn't  know, 
but  I  understood  he  was  the  sheriff  of  Crittenden  County. 

Q.  Will  you  please  examine  that  box  and  see  if  'tis  exactly  the  same  as  those  21 
that  you  shipped  to  Marion  for  Mr.  Werner,  the  sheriff  of  Crittenden  County. — A. 
Well,  I  can't  say  that  it's  exactly  the  same,  but  it's  almost  a  fac-simile. 

Q.  Can  you  see  wherein  it  differs  materially? — A.  No,  no;  it  don't  differ  at  all,  it's 
the  same  thing  exactly ;  we  don't  save  patterns  of  them  at  all,  but  I  see  no  difference  ; 
that's  the  kind  of  box  it  was ;  there  might  be  a  little  difference  in  dimensions,  but  the 
same  thing  in  every  other  way. 

Q.  For  what  purpose  vrere  they  ordered  ? — A.  They  were  ordered,  as  I  understood, 
for  ballot-boxes. 

Q.  Is  the  entry  so  made  on  your  books  ? — A.  Yes,  sir ;  21  ballot-boxes. 

Q.  To  be  shipped  to  what  point  ? — A.  They  were  shipped  from  the  store;  I  couldn't 
say  positively  where  they  were  shipped  to;  I  know  they  were  shipped  to  the  sheriff 
of  Crittenden  County ;  they  were  charged  on  the  books  to  W.  F.  Werner,  Mound  City, 
Arkansas. 

Q.  How  would  yoa  describe  the  boxes  as  made  by  you? — A.  Well,  they  are  made 
as  we  would  generally  make  ballot-boxes,  with  that  extra  cap  on  the  slot  that  you 
put  the  ballots  in ;  I  have  no  more  idea  what  that's  for  than  the  man  in  the  moon  ;  it 
was  none  of  my  business;  I  made  them  as  I  was  ordered ;  well,  I  have  an  idea,  too, 
but  at  the  same  time  I  don't  know. 

Q.  With  what  firm  are  you  connected  in  the  city  of  Memphis? — A.  H.  Wetter 
Manufacturing  Company. 

Q.  In  what  way  ? — A.  As  foreman  of  the  shop. 

Q.  As  such  you  know  the  foregoing  to  be  a  correct  statement  of  the  facts  ? — A.  Yes, 
sir ;  as  near  as  I  can  get  it. 

Q.  Were  all  the  boxes  made  by  you  furnished  with  this  peculiar  cap  which  accom- 
panies the  box  before  you? — A.  All  that  21  boxes  made  for  the  sheriff  of  Crittenden 
County  had  that  device  attached  to  them;  I  had  no  idea  I'd  get  into  this  kind  of  a 
scrape,  though,  when  I  was  making  them.    (Printed  record,  page  228-9.) 

/Stephen  James  tells  how  the  ballot-boxes  returned  a  Democratic  majority 
in  a  Republican  county. 

Stephen  James,  in  speaking  of  the  September  election,  says : 

Q.  Do  you  know  whether  the  ballots  were  counted  at  the  various  precincts  in  your 
county  according  to  law,  or  whether  the  boxes  were  carried  to  the  county  seat  before 
being  counted  ? — A.  I  can  not,  only  from  hearsay. 

Q.  What  have  you  heard  v.ith regard  to  that  ?— A.  At  Bradley's  precinct,  when  they 
got  done  voting,  this  man  in  Memphis  remarked  to  the  boys,  "  You  know  our  orders." 


92  PEATHERSTON    VS.    CATE. 

My  half  brother  was  acting  there  that  day,  was  representing  our  ticket  on  the  out- 
side, and  when  they  got  done  voting  this  man  remarked,  "  Well,  boys,  you  know  our 
orders,"  and  my  half  brother  remarked  to  him,  "Aint  you  goingto  count  them  votes?" 
Said  he,  "  No,"  and  they  taken  the  poll-boxes,  two  or  three  boys  following  them,  and 
they  carried  it  into  Sam  Cells'  house  about  sundown.  That  was  about  in  a  mile  of 
Marion.  They  never  was  counted  at  the  precinct  at  all,  and  the  way  they  kept  them 
there,  there  was  220  votes  cast,  and  the  so-called  Democratic  party  I  think  got  eight, 
and  when  they  was  counted  out  in  Marion  the  so-called  Democratic  party  got  212, 
and  the  People's  ticket  got  8,  and  the  man  that  distributed  their  tickets  there  told 
me  he  only  distributed  8  tickets  there  that  day.     (Printed  record,  page  186.) 

Having  secured  tlie  appointment  of  Democratic  judges  of  election  the  con- 
spirators made  an  attempt  to  Jceep  the  Republicans  from  putting  a 
county  ticlcet  in  the- field. 

Jordan  Yeates,  in  speaking  of  the  effort  on  the  part  of  the  Democrats 
to  prevent  the  Republicans  from  putting  out  a  county  ticket,  testified : 

Q.  Have  you  had  any  trouble  over  there  in  the  last  few  months,  growing  out  of 
politics? — A.  Yes,  sir;  we  had  last  year,  from  last  July  up  until  you  may  say  rill 
now,  we've  had  great  trouble,  sir;  great  trouble. 

Q.  Go  on  and  state  what  you  know  about  that  trouble. — A.  Well,  they  went  to 
work,  of  course  the  Democrats  did,  and  drive  the  officers,  Dan  Louis,  Dave  Furguson; 
that  is,  their  intention  were  to  get  all  the  Eepublicau  leaders,  colored,  out  of  the 
county ;  that  was  their  object,  and  they  went  to  work  and  drive  Dan  Louis,  Dave 
Ferguson,  and  a  good  many  others,  I  couldn't  call  their  names,  out. 

Q.  What  excuse  did  they  give  for  that? — A.  Well,  the  excuse  they  told  me  for  it, 
was  they  had  written  a  notice  to  them  giving  them  so  many  days  to  get  out  the 
county  in,  certain  men,  and  they  just  reversed  it  by  making  them  leave  before  that 
time,  in  the  place  of  them  having  to  leave  themselves. 

Q.  Have  these  same  men  since  that  time  been  directly  charged  with  writing  these 
anonymous  letters? — A.  Don't  know,  sir,  whether  they  have  or  not;  don't  think 
they  have. 

Q.  After  that  trouble  commenced,  do  you  know  of  any  threats  that  were  made  as 
to  what  would  be  done  against  prominent  members  of  your  party  in  your  county  ? — A. 
Oh,  yes,  sir ;  they  were  making  threatenings  all  the  time.  Directly  after  that  riot 
taking  place,  I  remember  they  drive  those  men  off  the  day  that  the  county  central 
committee  called  the  convention  together — that  is,  on  Saturday  were  the  day  they 
were  to  be  called — they  drive  them  off;  on  Thursday  I  met  there  myself  with  a  few 
more ;  Mr.  Werner  said  to  me,  "Yon  better  not  try  to  hold  a  convention  here  to-day, 
there's  too  much  excitement;  if  you  undertake  it  you  will  be  hurt ;  we  ain't  going  to 
have  but  one  ticket. " 

Q.  What  ticket  was  that? — A.  That  was  the  Democratic  ticket,  and  I  answered  him 
by  saying  we  were  going  to  hold  a  convention  somewhere  in  the  county  to-day ;  he 
said  you  can't  hold  it  here,  you  better  not  try  to  hold  any  here. 

Q.  Was  Mr.  Werner  an  officer  in  the  county  at  that  time  ? — A.  He  was  the  sheriff 
then  at  the  time ;  then,  of  course,  after  I  talked  to  him  I  went  over  to  Major  Critten- 
den, told  him  what  Mr.  Werner  had  said  to  me,  then  major  advised  me  to  go  and  hold 
it ;  that  being  the  day  set  for  to  hold  the  convention  for  the  county  central  commit- 
tee called,  to  go  and  hold  it  somewhere  and  it  would  be  legal.  So  I  went  up  the 
road  and  got  what  I  could  together,  and  I  didn't  call  the  convention  that  ti.'ne  ;  so 
afterwards  Mr.  Werner  finally  agreed  we  could  hold  the  convention  in  the  court-house, 
but  he  told  me  that  they  had  made  one  ticket,  and  there  was  going  to  be  but  that 
one  ticket  elected ;  that  if  it  was  elected  it  wouldn't  do  any  good  ;  that  they  shouldn't 
hold  the  position,  and  went  on  to  make  offers  what  he'd  rather  do,  and  so  on;  said 
he  was  speaking  for  the  others ;  offered  if  I  wouldn't  hold  the  convention,  8:" 0  to  each 
delegate;  that  we'd  just  decide  on  what  they  had  done  and  take  their  men  that  they 
had  appointed.  I  didn't  agree  to  that,  so  Mr.  Gus  Fogalnian  sent  for  me  on  Satur- 
day morning  to  come  over  there  to  the  post-office ;  I  went  over  to  the  post-office,  and 
hesaid  to  me,  "  I  want  to  see  you  to  see  if  we  can't  make  some  arrangement  to  stop 
you  all  from  making  a  ticket ;  I  believe  it  would  be  cheaper  for  us  for  you  all  to  do 
that,  not  to  make  no  ticket,  because  if  you  make  a  ticket,  if  you  effect  it,  it  ain't  going 
to  do  you  any  good,  for  the  nominations  we  have  made  are  going  to  be  the  officers ; 
and,"  he  said,  "now,  what  will  you  charge  to  break  up  the  convention?  You  can 
break  it  up  even  if  the  intimidation  we  offer  of  $50  a  piece  to  each  delegate  ;  if  they 
don't  do  it,  why,  you  being  chairman,  you  get  up  there,  go  to  work,  and  don't  heed 
nothing,  and  you'll  get  it  done  that  way,  if  you  can't  do  it  any  other  way."  Oh,  I,  of 
conrse,  didn't  tell  him  what  I  thought  about  it,  because  I  knew  I  was  about  like  the 


FEATHERSTON   VS.    GATE.  93 

rest ;  I  was  there  ainongst  tliein  Winchesters,  though  I  told  him  couldn't  do  any- 
thing like  that ;  that  I'd  tell  the  boys,  though,  what  they  had  offered.  Well,  he 
says,  "  I  tell  you  what  I'll  do:  We  are  willing  to  give  $50  to  each  delegate."  There 
was  53,  I  believe,  there  was  of  us,  and  he  siays  "  ru  give  your,  prior  to  the  rest,  $250 
if  you'll  do  it," 

Q.  That  was  Mr.  Werner?— A.  No,  sir;  that  was  Fogalman;  he  was  represent- 
ing the  crowd ;  so  rae  and  him  didn't  agree  on  it,  and  Mr.  Werner  then,  after  that, 
alter  we  made  the  nomination  that  day,  then  I  met  him  at  Crawfordsville  in  a  few 
days  afterwards,  and  he  said  that  he  had  been  instructed  that  we  were  going  to  re- 
cail  to  reconsider  the  matter,  and  he  said  if  we  did  do  it,  it  would  be  all  right,  and  if 
we  didn't  they  were  going  to  have  the  office  any  how,  no  matter  how  the  election 
went;  no  matter  how  many  or  how  little  they  got,  they  were  going  to  hold  the  office, 
and  if  we  would  take  their  otters  they  would  give  us  justice  of  the  peace  and  con- 
stable, that  was  their  offer.  Eeally  to  go  to  work  and  track  Mr.  Werner's  conversa- 
tion with  me  from  that  time  up,  I  couldn't  do  it  because  he  courted  me  from  the  time 
to  the  day  of  the  election,  but  making  those  violent  threats  all  the  time;  that  we 
might  carry  the  election  as  we  pleased,  but  they  were  going  to  have  it. 

Q.  He  claimed  to  represent  the  Democratic  vote  and  you  the  other? — A.  Yes,  sir. 
(Printed  record,  page  193.) 

After  the  ticket  was  uominated  the  Democrats  attempt  to  make  the 
candidates  decline. 

J.  H.  Williams  (white),  a  witness  on  behalf  of  the  contestant,  being 
first  duly  sworn,  testified  as  follows :  • 

Q.  What  i3  your  name? — A.  J.  H.  Williams. 

Q.  Where  do  you  live  ?— A.  Crittenden  CoDinty. 

Q.  What  State? — A.  Arkansas. 

Q.  How  old  are  you  ? — A.  47. 

Q.  How  long  have  you  lived  in  Arkansas? — A.  21  years  5th  day  of  this  month. 

Q.  Have  you  ever  held  any  official  position  there  ? — A.  I  have. 

Q.  What  position? — A.  Squire  for  six  years,  and  judge  of  the  county  and  probate 
court  two  years. 

Q.  What  ticket  were  you  elected  on  then  ? — ^A.  Democratic. 

Q.  What  have  your  politics  been  during  the  time  you've  been  in  Arkansas  ? — A. 
Democratic. 

Q.  How  long  have  you  been  farming  in  Arkansas  ? — A.  21  years. 

Q.  You  own  your  home  there  ? — A.  I  do ;  at  least  my  wife  does. 

Q.  Are  you  engaged  in  any  other  business  beside  farming  ? — A.  I  am,  sir. 

Q.  What  is  it  ? — ^A.  Merchandising. 

Q.  At  what  point  ? — A.  Crawfordsville  and  Jericho. 

Q.  How  long  have  you  been  merchandizing  at  both  these  points? — A.  Well,  I  com- 
menced in  1881  at  Crawfordsville,  and  last  spring  at  Jericho. 

Q.  About  how  many  bales  of  cotton  do  you  handle  per  year? — A.  About  50  or  75 ; 
I  don't  buy  cotton ;  we  do  a  cash  business ;  we  don't  propose  to  handle  cotton. 

Q.  Were  you  a  candidate  for  a  position  in  the  last  election  ? — A.  I  was. 

Q.  On  the  People's  ticket  ? — A.  Yes ;  I  was. 

Q.  Do  you  think  you  were  elected  ? — A.  I  was. 

Q.  By  what  vote?— A.  1.200  or  1,500  majority. 

Q.  Did  you  get  the  office  ? — A.  I  did  not. 

Q.  Why  not  ? — A.  Well,  I  ain't  been  able  to  find  out ;  I  just  seed  I  couldn't  get 
there ;  they  said  they  was  elected,  and  I  couldn't  get  there ;  I  don't  know  why. 

Q.  Have  they  ever  denied  that  you  received  the  plurality  of  votes? — A.  Oh,  yes; 
they  deny  that  all  the  time ;  they  say  they  are  elected,  but  I  say  they  are  not. 

Q.  What  makes  you  think  you  were  elected  ? — ^A.  Well,  sir,  I  was  on  what  they 
call  the  Republican  ticket,  and  the  majority  there  is  generally  between  1,200  and 
1,500 ;  as  much  as  two  thousand;  we  haven't  over  400  white  people  in  the  county, 
and  the  black  man  never  votes  anv  other  ticket,  unless  he's  pursuaded  or  paid,  and 
this  time  neither  was  done,  that  is  my  belief.  The  black  people  come  to  me  and  said 
all  I  ask  of  you  is  to  put  your  name  to  this  ticket,  we  want  a  Democrat  on  this  ticket, 
and  if  you  will  just  say  you  will  run  we'll  elect  you ;  you  needn't  spend  a  cent.  And 
I  told  them  Fd  serve  them  if  they'd  elect  me ;  I  didn't  tell  them  Fd  be  a  Republican; 
I  ain't  a  Republican,  and  never  will  be,  I  don't  think. 

Q.  Were  the  white  men  that  were  on  that  ticket  asked  to  become  Republicans 
when  they  were  put  on  the  ticket? — A.  Ihey  were  not  ;  the  black  people  asked 
to  have  the  best  Democrats  in  the  county  on  the  ticket  and  they  would  vote  for 
them ;  they  couldn't  get  enough  of  them,  and  put  a  black  man  on  it.  I  rode  three 
weeks  on  my  horse,  and  told  ^hose  people  that  was  what  they  ought  to  do,  and 


LI4  FEATHERSTON   VS.    GATE. 

they  wouldn't  do  it ;   I  said  you  can  go  to  hell ;    John  Williams  will  do  as  he 
pleases. 

Q.  Was  the  disposition  of  the  colored  people  to  override  the  white  people  ? — A.  It 
was  not ;  they  wanted  nothing  but  simple  quietude  in  every  shape. 

Q.  Did  you  accept  this  position  in  the  interest  of  the  government  in  Crittenden 
County  for  a  special  desire  to  be  judge  of  the  county  ? — A.  I  done  it  for  the  county's 
interest;  not  that  I  cared  ft  cent  for  the  judge's  office;  I  wouldn't  give  thank  you  for 
it  to-day. 

Q.  Does  your  private  business  require  most  of  your  time  at  home  ? — A.  Yes,  sir. 

Q.  You  say  you  didn't  want  to  bo  nominated  as  judge  ? — A.  No,  sir ;  the  second 
time  I  wouldn't  have  it.  I  read  a  piece  in  the  paper  where  a  man  had  been  in  office 
40  years,  and  the  first  hundred  dollars  he  borrowed  he  never  had  paid  it  back ;  I  said, 
John  Williams,  you  go  home  to  your  wife  and  childreu. 

Q.  You  didn't  want  the  office  of  judge? — A.  I  did  not,  sir;  but  when  I  found  out 
that  I  had  been  nominated  by  the  colored  element  on  the  ticket  I  determined  to  serve 
if  I  was  elected,  not  on  account  of  private  gain  to  myself,  but  for  the  best  interests 
of  the  people  of  the  community. 

Q.  You  had  known  of  the  operation  of  the  Winchester  rifle  crowd  at  the  beginning 
of  this  matter,  had  you  ? — A.  I  had,  sir. 

Q.  Did  you  say  anything  to  them  with  regard  to  what  would  be  the  conse- 
quence of  their  way  of  proceeding  ?—rA.  I  said  this:  I  said,  ''What  you've  done, 
you've  done  well  enough,  but  don't  carry  it  into  politics."  That's  what  I  said  to  Dr. 
Bingham. 

Q.  Then  you  were  looking  after  your  own  interest,  and  the  interest  of  the  people  of 
the  county,  in  a  business  way,  when  you  agreed  to  enter  this  contest,  and  admit 
to  all  this  political  excitement  ? — A.  I  was,  sir ;  and  furthermore  I  kept  trouble  down 
otherwise.  I  told  them  it  wouldn't  do.  I  wanted  everything  quiet,  and  told  the 
white  people  and  the  black  people  that  we  wanted  quietude,  and  wanted  to  live  to- 
gether. 

Q.  Is  it  your  opinion,  if  your  advice  had  been  followed,  you  would  have  had  any 
serious  trouble  in  Crittenden  County  at  this  time  at  all  ? — A.  We'd  have  had  the 
most  prosperous  country  in  the  world,  sir.    They  see  it  as  well  as  I  do  now. 

Q.  In  bringing  on  this  trouble  do  you  consider  the  mass  of  the  colored  people  of 
that  county  to  blame,  or  what  is  known  as  the  Winchester  element  ? — A.  The  mass  of 
the  colored  people  wasn't  to  blame. 

E.  D.  Sanders,  after  telling  of  the  driving  away  of  the  county  oflQcials 
by  Democrats,  testified : 

After  that  they  held  a  convention,  these  same  men,  and  made  a  ticket  which  they 
called  a  Democratic  ticket ;  the  colored  people  then  went  to  make  their  ticket,  and 
they  forbid  them  to  make  a  ticket;  well,  they  saw  they  couldn't  make  a  colored 
xicket,  and  I  don't  tnink  they  had  any  inclination  to  do  it,  and  they  tried  very  hard 
to  get  up  enough  white  men,  old  farmers  in  there,  to  till  the  four  imjjortant  offices, 
and  they  worked  on  this  for  over  a  week ;  they  couldn't  do  it ;  they  came  to  me  and 
asked  me  if  I  would  accept  the  nomination  for  sheriff,  and  I  refused ;  I  told  them  I 
never  held  any  office,  I  didn't  wish  any;  well,  they  then  told  me  that  they  didn't  see 
how  they  could  keep  down  a  fuss  unless  we  would  do  it ;  unless  I  would  get  them  out ;  I 
went  out  then  and  consulted  with  some  white  men  about  it,  and  they  insisted  that  I 
should  do  it,  and  I  told  them  then  for  the  good  of  the  county  I  would  run ;  well,  thej-^ 
met  then  and  nominated  me,  and  there  was  a  delegation  came  out  from  Marion  and 
asked  me  to  withdraw  ;  I  asked  them  on  what  ground. 

Q.  Please  state  the  names  of  that  delegation. — A.  Dr.  Bingham,  Major  Crittenden, 
L.  P.  Berry,  and  Colonel  Smith,  John  E.  Chase. 

Q.  Were  they  generally  considered  as  the  leaders  of  the  Democratic  party  in  that 
movement  ? — A.  Yes,  sir. 

Q.  What  reason  did  they  give  you  for  asking  you  to  withdraw  from  a  nomination 
already  tendered  you  ?— A.  Didn't  give  any ;  I  asked  them  to  give  me  a  reason,  and 
they  never  did  do  it.  Well,  then,  I  proposed  to  them  if  they  would  do  away  with 
the  ticket  that  they  made  and  call  a  convention  of  the  white  people  in  the  county 
generally  and  make  a  ticket  that  I  would  resign,  I  wouldn't  run,  and  they  said  they 
couldn't  do  it ;  well,  I  still  made  another  proposition ;  that  if  they  would  withdraw 
two  men  they  had  on  the  ticket  and  nominate  two  more  that  I  would  withdraw;  said 
they  couldn't  do  it ;  well,  then  I  told  them  if  they  beat  me  they  would  beat  me  at 
the  ballot-box,  and  I  ran  the  race  through  and  suppose  I  got  about  six  votes  to  their 
one ;  I'm  pretty  certain  of  it,  because  we  had  outside  clerks  that  kept  every  name 
down,  but  they  counted  us  out,  at  least  their  returns — the  secretary  of  the  State 
counted  us  out. 

Q.  Yon  say  that  your  impression  is,  from  the  tally  sheets  kept  by  outside  clerks 
friendly  to  your  side  of  this  cause,  that  you  are  satisfied  that  your  ticket  was  elected 
by  five  or  six  to  one  ? — A.  Yes ;  our  tally  sheet  showed  up  2,500  votes. 


FEATHEESTON   VS.    GATE.  95 

Q.  Now  what  has  been  the  proportion  of  the  Democratic  and  the  Republican  vote 
in  that  county? — A.  About  one-sixth  Democrats. 

Q.  Is  it  uot  a  fact  that  a  considerable  number  of  men  who  had  never  before  voted 
any  other  ticket  but  the  Democratic  ticket  voted  for  your  ticket  ? — A.  '1  hey  certainly 
did ;  I  know  that  to  be  a  positive  fact.     (Printed  record,  page  199.) 

Failing  to  get  the  Republiean  ticket  out  of  the  way,  they  then  commenced  to 
threaten  that  they  would  carry  the  election  at  all  hazards. 

E.  D.  Sanders,  in  speaking  of  threats  made  prior  to  September  elec- 
tion, testified: 

Q.  During  the  time  just  prior  to  the  election  did  you  hear  any  direct  threats,  or 
was  there  any  remarks  made  as  to  the  comparative  value  of  a  Winchester  lille  and 
money  in  carrying  elections  in  Arkansas? — A.  I  did. 

Q.  Please  state  what  they  were  ? — A.  I  heard,  on  one  or  two  occasions,  men  there 
say  that  Winchester  rifles  were  cheaper  than  to  buy  votes;  and  then  one  man  told 
nic  to  my  face  it  didn't  matter  how  the  election  went,  they  were  going  to  have  the 
offices. 

A.  Who  was  it  that  made  that  statement? — A.  This  was  William  Willerford 
(Printed  record,  page  199.) 

Jordan  Yeates,  in  speaking  of  the  threats  made  to  carry  the  Septem- 
ber election,  testified : 

Q.  And  he  told  you  that  he  was  going  to  carry  that  election  and  get  those  officers, 
no  matter  how  the  vote  went? — A.  That's  what  he  said,  yes,  sir ;  he  certainly  told 
me  that,  I  reckon,  more  than  five  or  six  different  times;  he  made  those  threats  to  me 
five  or  six  different  times  ;  the  last  time  was  at  West  Memphis,  and  he  said  he  wouldn't 
serve  as  sheriff  with  no  more  colored  officers. 

•  •  •  •  «  •  • 

They  made  threats  that  they  were  going  to  carry  the  election,  and  if  they  had  to 
carry  it  with  their  Winchesters;  and  again,  now  this  was  Mr.  Jul  Harden  made  that 
threat ;  that  he  thought  it  was  cheaper  to  take  the  election  with  the  Winchesters  than 
it  was  to  take  it  with  money.  I  heard  him  make  that,  and  I  remember  exactly  where 
he  was  sitting  when  he  said  so;  that  it  was  cheaper  for  them  to  carry  it  with  tlieir 
Winchesters  than  with  money;  that  was  the  evening  after  our  convention. 

Q.  I  want  to  know  if  some  days  prior  to  the  election  were  they  making  demonstra- 
tions all  around  over  the  county  with  those  guns — marching  around  with  them  I — A. 
Oh,  yes,  sir ;  they  was.     (Printed  record,  page  193.) 

S.  K.  Eushing,  on  this  subject,  testified : 

Q.  Did  you  ever  hear  any  threats  mnde  in  regard  to  Republican  voters  voting  the 
Republican  ticket  ? — A.  No  more  than  the  Winchester  rifle  crowd  said  there  shouldn't 
no  colored  man  hold  office  in  that  county;  that's  what  they  said;  shouldn't  no  col- 
ored man  hold  office  in  that  county. 

Q.  Have  you  heard  any  threats  in  regard  to  Republicans  holding  office  in  that 
county  ? — A.  None  of  them  shouldn't  hold  no  office  there. 

Q.  Who  did  you  hear  referred  to  on  this  occasion  ? — A.  These  parties  that  we  nomi- 
nated on  our  ticket  as  Republicans ;  Mr.  James,  Mr.  Boon,  Mr.  John  Williams,  Jim 
Thompson,  and  Augustus.    (Printed  record,  page  207.) 

F.  L.  Fleming,  in  speaking  of  the  ticket  nominated  as  a  fusion  ticket, 
testified: 

Q.  What  do  you  mean  by  a  ftision  ticket  f — A.  By  giving  the  Democrats  and  Re- 
publicans part  of  the  offices.  Our  method  over  there  was  to  give  the  sheriff  and 
treasurer  to  the  Democrats,  elect  the  clerk  Republican,  and  judge  Republican.  Those 
were  the  four  prominent  positions  in  the  county.  The  others  were  divided  among 
the  white  and  colored.  The  leading  colored  men  of  that  county  advocated  that,  and 
that  was  the  kind  of  ticket  that  was  elected  in  1886,  under  our  advice,  and  had  been 
for  several  years. 

Q.  Did  the  leading  colored  Republicans  over  there,  in  their  advice  to  their  con- 
stituents to  live  in  peace  and  amity  with  the  white  people,  or  not  ? — A.  Yes,  sir;  they 
did ;  I  ran  a  paper  over  there,  and  that  was  ray  advice  the  last  issue  I  made  over  there 
on  the  7th  day  of  July,  1888.  There  was  oix^  paragraph  I  rememltcr  well.  I  asked  the 
colored  people  to  divide  the  positions  bciwuoii  the  white  and  colored;  it  wouldn't  be 
a  safe  policy  to  advocate  an  entire  Republican  ticket  or  an  entire  black  ticket.  (Print- 
ed record,  page  196.) 


96  FEATHERSTON    VS.    CATE. 

J.  P.  Broadenax,  iu  speaking  of  what  class  of  persons  the  Democrats 
were  dissatisfied  with,  swears  : 

Q.  Against  whom  did  the  armed  crowd  seem  to  be  operating  chiefly  T — A.  Against 
the  colored,  sir. 

Q.  That  was  before  your  county  ticket  was  made,  was  it  T — A.  Yes,  sir. 

Q.  You  afterwards  made  up  a  county  ticket  upon  which  there  was  four  or  five  re- 
sponsible white  men  iu  the  county,  did  you  not  T — A.  Yes,  sir, 

Q.  That  was  known  as  what  ticket? — A.  The  Republican  ticket,  sir. 

Q.  Did  you  hear  them  say  anything,  or  were  any  threats  made  as  to  that  ticket  or 
those  that  were  on  it,  that  you  know  of  ? — A.  Well,  I've  heard  some  threats  made, 
but  they  were  not  made  directly  to  me. 

Q.  Have  they  seemed  any  kinder  or  more  pleasant  toward  those  white  men  than 
they  have  toward  the  colored  men  since  that  time  of  this  opposition,  seemed  any 
kinder  toward  the  white  men  that  were  on  your  ticket  than  they  were  to  the  colored 
men  of  the  county,  or  have  they  treated  them  all  about  alike  ? — A.  They  treated  them 
all  about  alike,  seemed  like  to  me  as  far  as  I've  seen,  the  white  men  that  was  on  the 
ticket  and  the  colored  people  seemed  to  be  treated  just  about  alike.  (Printed  reccrd, 
page  197.) 

The  Winchester  rifle  crowd. 

William  Royster,  in  speaking  of  who  belonged  to*  the  Winchester 
rifle  crowd,  testified : 

Q.  Do  you  know  Mr.  Berry,  the  lawyer  of  Mr.  Gate  in  this  investigation  f — A.  Yes, 
sir. 

Q.  Do  you  know  whether  he  was  a  member  of  this  Winchester  crowd  or  not  ? — A. 
Oh;  yes,  sir;  he  drilled  in  front  of  my  door  every  night,  and  up-stairs  in  the  court- 
house ;  he  had  the  company  drilling  it  himself;  he  was  captain  of  the  company  iu 
Marion;  he  had  one  company  and  Olie  Tuck,  the  deputy  clerk,  had  one. 

Q.  Do  you  know  whether  Mr.  Kelly,  the  clerk  of  the  county  court,  was  a  member 
of  this  organization  or  not? — A.  He  was  then,  because  he  guarded  the  jail  every 
night  to  keep  any  troops  from  getting  in  the  court-house  ;  he  kept  guard  while  the 
others  was  out  scouting. 

Q,  Were  they  officers  of  the  county  before  this  Winchester  organiz;ition  or  after- 
wards ? — A.  Mr.  Vanc<5  was  clerk  then  when  Kelley  had  the  Winchesters  at  the  court- 
house. 

Q.  Were  these  county  officials  elected  in  the  election  in  which  these  Winchester 
rifles  to  which  you  refer  intimidated  the  voters  from  voting? — A.  Yes,  sir. 

Q.  They  were  elected  to  their  present  position  at  that  election,  were  they  ? — A.  Yes, 
sir. 

Q.  So  they  had  a  personal  interest,  then,  in  this  terrorizing  and  bulldozing  ? — A. 
Yes,  sir ;  that  morning  on  the  Itith  of  .July  I  was  sitting  over  there  in  front  of  my 
house  ou  the  grocery  porch,  and  they  was  down  there  by  Mr.  Chase's  caucusing,  and 
I  heard  Mr.  Crittenden  over  at  his  office  tell  them  they  was  a  God  damn  long  time 
doing  wliat  they  promised,  and  they  marched  on  to  the  court-house  and  they  wi-nt  off 
to  the  clerk's  office  and  marched  the  men  out  and  .stood  there  fifteen  or  twenty  min- 
utes and  then  carried  them  on  the  north  side  of  the  court-house. 

Q.  Were  any  of  the  men  exiled  from  the  county  by  that  body  of  men  except  your- 
self?— A.  Oh,  yes,  sir;  yes,  sir;  I  reckon  there  was  about  fifteen  or  twenty  of  us 
altogether. 

Q.  Were  they  farmers  and  men  of  the  county  who  owned  property  there? — A.  Yes, 
sir,  pretty  well;  all  of  them  owned  i>roperty,  farmers  and  officers.  (Printed  record, 
page  190.) 

J.  W.  Wymme,  in  speaking  of  the  same  subject,  testified : 

Q.  You  speak  of  a  Winchester-rifle  crowd  ;  do  you  know  whether  that  party  of  men 
claim  to  be  Democrats  or  Republicans? — A.  Democrats. 

Q.  Have  you  ever  heard  directly  from  them  the  ol\ject  of  their  organization? — A. 
Never  has,  sir;  only  seen  them  drilling — drilling  the  other  day. 

Q.  Do  you  know  of  any  of  the  officials  of  Crittenden  County  who  are  members  of 
that  organization  1 — A.  Well,  yes,  sir  ;  I  do. 

Q.  Who  are  they  ? — A.  The  officials  are :  Let  me  see,  there  is  Neeley  Raspberry. 

Q.  What  position  does  he  hold  ? — A.  Coroner. 

Q.  Who  else? — A.  Sheriff  Warner  belongs  to  it ;  he's  the  captain,  I  believe,  or  drill- 
master  or  something. 

Q.  Anybody  else  ? — A.  Bob  Gilliard. 

Q.  What  position? — A.  I  dou't  know  what  position  he  holds.  (Printed  record, 
page  204.) 


FEATHERSTON   VS.    GATE.  97 

William  Royster,  in  speaking  of  the  political  status  of  the  county 
officers  of  Crittenden  County,  testified : 

Q.  You  say  Mr.  Forest  represented  aa  organized  crowd  of  men  armed  with  Win- 
chester rifles. — A.  Yes,  sir. 

Q.  Do  yon  know  who  the  members  of  that  crowd  were  ? — A.  I  kne\^^  some  of  them. 

Q.  Were  any  of  the  county  officials  members? — A.  Yes,  sir;  Mr.  Warner  and  Ju- 
lian Harden.  i 

Q.  What  position  did  Mr.  Warner  hold? — A.  Mr.  Warner,  sheriff;  Julian  Harden, 
deputy  sheriff;  Neeley  Raspberry,  coroner  ;  and  Squire  Mosbey,  justice  of  the  peace  ; 
and  Squire  Martin,  county  judge.     (Printed  record,  page  190.) 

It  appears  from  the  testimony  of  J.  W.  Wymme  that  the  Winchester 
rifles  were  used  up  to  the  November  election. 

J.  W.  Wymme  (col'd),  a  witness  on  behalf  of  the  contestant,  being  first  duly  sworn, 
deposed  as  follows : 

Q.  What  is  your  name? — A.  J.  W.  Wymme. 

Q.  Where  do  you  live  ? — A.  Itf  Crittenden  County,  Crawfordsville,  State  of  Arkan- 
sas. 

Q.  How  long  have  you  lived  there? — A.  Near  twenty-three  years. 

Q.  How  old  are  you  ? — ^A.  45  years  old,  going  on  46. 

Q.  What  is  your  business  ? — A.  Minister  of  the  gospel. 

Q.  Where  were  you  living  last  July  ? — A.  At  Crawfordsville. 

Q.  Do  you  still  live  there? — A.  Yes,  sir. 

Q.  You  say  you  were  living  at  Crawfordsville  last  July  ? — A.  Yes,  sir. 

Q.  Do  you  know  whether  there  was  a  political  disturbance  in  that  place  at  that 
time  ? — A.  There  were. 

Q.  What  was  it  ? — A.  Well,  several  of  our  officers  were  put  cut  of  the  country,  out 
of  the  State. 

Q.  You  say  they  were  put  out  of  the  country;  how  were  they  put  out? — A.  By 
guns — Winchesters — these  Winchester  rifles. 

Q.  Who  had  possession  of  those  arms? — A.  There  wer«  so  many  that  had  posses- 
sion of  them  I  couldn't  tell  you  all. 

Q.  Do  you  know  any  reason  that  was  given  for  exiling  those  men  to  whom  you  re- 
fer ?— A.  I  do  not ;  only  that  they  said  they  were  dabbling  too  much  in  politics. 

Q.  W^hat  was  the  force  of  the  Winchester-rifle  crowd  ? — A.  I  don't  know  ;  I  never 
(lid  know  how  many  there  were. 

Q.  How  many  did  you  ever  see  ? — A.  I've  seen,  I  reckon,  18  or  20. 

Q.  How  long  did  that  state  of  affairs  continue  there  ? — A.  Well,  they  continued  a 

od  while.    After  they  put  those  men  everything  become  calm  for  a  while,  but  they 

ver  did  stop  toting  the  guns,  rifles,  and  one  thing  and  another. 

Q.  Are  they  stiM  carrying  them? — A.  Yes,  sir;  the  day  of  the  election,  the  evening 
;fter  the  election  was  over  closed,  I  met  18  or  20  of  them,  all  in  a  group,  going  down 
Marion  with  their  rifles. 

Q.  What  election  was  that  ?— A.  The  last  election  we  had. 

Q.  The  election  for  Mr.  Harrison  and  Mr.  Featherston? — A.  Yes,  sir. 

Q.  What  effect  did  this  state  of  terrorism  which  you  refer  to  have  upon  the  people 
of  the  county  ? — A.  Well,  it  had  a  great  effect  upon  them,  sir  ;  I  think  it  scared  up 
everybody;  they  were  afraid  to  do  anything  ;  afraid  to  even  claim  for  their  rights. 

Ill  The  contestant  in  his  notice  of  contest  (par.  XIX)  charges — 
^That  in  the  county  of  Crittenden,  in  said  district,  there  are  over  twenty-nine  hun- 
■red  (2,900)  legal  voters;  that  not  more  than  five  hundred  (500)  of  that  number  are 
democrats  and  partisans  of  yours;  the  other  twenty-four  hundred  (2,400)  were  and 
me  friends  and  "partisans  of  myseif ;  that  the  county  judge  of  said  county,  who  is  a 
prtisau  of  yours,  well  knowing  that  you  did  not  have  to  exceed  five  hundred  (500) 
supporters  in  said  county  and  that  I  had  more  than  twenty-four  hundred  (2,400),  in 
your  interest  and  against  mine,  in  violation  of  law  appointed  all  of  the  judges  of 
election  from  the  political  party  to  which  you  and  he  belong,  in  open  and  direct 
violation  of  the  statute  in  such  case  made  and  provided,  and  for  the  purpose  of  ])ro- 
ducing  the  result  herein  set  forth  in  relation  to  the  townships  of  Belcher,  Edraond- 
son,  Bradley,  Walnut  Grove,  Riceville,  Mound  City,  Scanlan,  Furgeson,  Crawfords- 
ville, and  Cat  Island;  that  the  sheriff  of  said  county,  who  is  a  ])artisan  of  yours, 
with  the  intent  and  purpose  of  advancing  your  interests  in  said  county  and  injuring 
mine,  and  with  the  view  of  jjreventing  the  holding  of  an  election  in  said  county  on 
said  6th  day  of  November,  1888,  willfully  failed  and  neglected  to  furnish  poll-books 
to  the  judges  of  election  in  the  various  precincts  in  said  county,  as  by  Jaw  ho  is 
required  to  do,  and  but  for  the  fact  that  I  c  used  poll-books  to  be  furnished  to 
said  judges  of  election  no  election  would  have  been  held  in  said  county;  that 
H.  jNIis.  137 7 


'^^ft 


98  FEATHERSTON   VS.    CATE. 

the  county  clerk  of  said  county,  who  is  a  partisan  of  yours,  for  the  purpose  of  aid- 
ing you  and  injuring  me,  through  mistake  or  fraud  failed  to  certify  six  hundred  and 
twenty-one  (621)  votes  to  the  secretary  of  state  that  I  received  in  the  precincts  or 
townships  of  Belcher,  Edmonson,  Bradley,  Walnut  Grove,  Riceville,  and  Furgeson, 
although  the  judges  of  election  had  made  proper  return  thereof  to  him  ;  that  in  the 
precincts  last  named  you  received  only  sixty-four  (134)  votes;  that  the  judges  of 
election  in  the  precincts  of  Crawfordsville,  Cat  Island,  and  Walnut  Grove,  and  all 
6f  wlmm  are  partisans  of  yours  and  creatures  of  the  county  judge,  the  sherift'and 
county  clerk  or  said  county,  through  mistake  or  fraud  falsified,  the  returns  from  said 
last-mentioned  precincts,  so  that  they  were  made  to  appear  1  received  four  hundred 
and  six  (406)  votes,  whereas  I  received  six  hundred  and  seventy-two  (672)  votes 
in  said  precincts  ;  that  said  falsified  returns  from  said  last-mentioned  precincts  show 
you  received  two  hundred  and  eight  (208)  votes,  whereas  you  received  hut  one  hun- 
dred and  fifteen  (115).  I  claim  the  right  to  show  the  lawlessness  of  your  partisans 
in  said  county  of  Crittenden  from  the  highest  to  the  lowest,  and  any  connection  you 
may  have  had  with  them,  and  shall  claim  the  right  to  show  that  their  title  to  said 
offices  of  county  judge,  sheriff,  and  county  clerk  was  bottomed  on  fraud  of  the  char- 
acter herein  stated,  and  of  ballot-box  stuffing,  and  that  said  judges  were  selected 
because  of  their  tact  and  talent  in  the  business  to  which  they  were  appointed,  not  only 
at  the  election  held  November  6th,  1888,  but  in  that  of  September,  1888.  (Printed 
record,  6-7.) 

The  lawlessness  of  the  partisans  of  the  contestee  is  fully  shown ;  that 
the  title  to  the  office  of  the  county  judge,  who  appointed  the  judges  of 
election  of  and  from  the  Democratic  party,  was  based  on  fraud  and  vio- 
lence; that  the  county  clerk,  whose  duty  it  was  to  certify  the  Novem- 
ber vote  to  the  secretary  of  state,  obtained  his  office  by  the  same  and 
like  means,  and  that  the  judges  of  election  were  chosen  as  agencies  by 
and  through  which  the  frauds  were  to  be  committed  and  were  com- 
mitted does  not  admit  of  question,  or  they  would  not  have  used  the 
fraudulent  ballot-box. 

We  have  already  said  the  evidence  fully  establishes  the  conspiracy. 

The  contestant  charges  that  the  county  clerk  failed  to  certify  to  the 
secretary  of  state  the  votes  cast  for  him  in  seven  townships  at  which 
elections  were  held  in  Crittenden  County. 

The  law  of  Arkansas  in  relation  to  counting  the  vote  is  as  follows: 

WHEN  AND  BY  WHOM  THE  VOTE  SHALL  BE  COUNTED. 

Sec.  2695.  On  the  fifth  day  after  the  election  or  sooner  if  all  the  returns  have  been 
received,  the  clerk  of  the  county  court  shall  take  to  his  assistance  two  justices  of  the 
peace  of  the  county,  if  they  can  conveniently  be  had,  and  if  not  then  two  household- 
ers having  the  quaJifications  of  electors,  and  shall  proceed  to  open  and  compare  the 
several  election  returns  which  have  been  made  to  his  office  and  make  abstracts  of  the 
votes  given  for  the  several  candidates  for  each  office  on  sep  arate  sheets  of  jiaper. 
(Mansfield's  Digest  of  Arkansas.) 

VOTES  MUST  BE  COUNTED  REGARDLESS  OF  ANY  INFORMALITY. 

Sec.  2700.  The  clerks  of  the  county  courts  of  the  several  counties  of  this  State  when 
they  shall  call  in  two  justices  of  the  peace  or  householders  to  assist  them  in  compar- 
ing the  poll-books  of  the  several  townships  shall  proceed  to  add  and  count  all  the 
votes  for  the  several  persons  therein  voted  for  regardless  of  any  informality  whatever. 
(Mansfield's  Digest  of  Arkansas.) 

Sec.  2009.  Ir^ormaliiy  in  the  certificate  of  the  judges  and  clerks  at  any  election  held 
in  any  township  shall  not  be  good  cause  for  rejecting  the  poll-books  of  said  township. 
(Mansfield's  Digest  of  Arkansas.) 

PENALTY  FOR  FAILURE  TO  COUNT  THE  VOTE. 

Sec.  2701.  Should  any  clerk  of  the  county  court  and  the  two  accompanying  jus- 
tices, or  householders,  or  either  of  them  under  any  circumstances  reject  or  refuse  io 
count  the  vote  on  any  poll-book  of  any  election  held  by  the  people,  such  rejection  or 
refusal  by  such  clerk,  etc.,  or  either 'of  them  shall  be  deemed  a  high  misdemeanor, 
etc.     (Mansfield's  Digest  of  Arkansas. ) 


FEATHERSTON    VS.    GATE. 


90 


In  Patlon  vs.  Coates,  41  Arkansas. 

These  sections  being  uuder  construction,  the  supreme  court  of  Arkansas  said : 

"  The  board  of  canvassers  of  an  election  have  no  judicial  discretion  whatever. 

They  are  merely  for  the  purpose  of  a  fair  and  correct  computation  of  the  votes,  under 

public  surveillance,  presented  to  them  by  the  clerk." 

In  view  of  these  sections  of  the  Arkansas  election  law,  and  the  con- 
struction thereof  by  the  highest  court  of  the  State,  the  failure  of  the 
clerk  to  certify  the  returns  of  the  seven  townships  alluded  to  is  simply 
a  willful  disregard  of  duty,  but  no  greater  than  those  indulged  in  by 
the  county  judge  and  sheriff. 

For  the  purpose  of  procuring  the  evidence  in  relation  to  the  vote  of 
the  seven  townships,  W.  B.  Eldridge,  one  of  the  attorneys  of  the  con- 
testant, went  to  the  county  seat  of  Crittenden  County  and  obtained  a 
certificate  showing  the  returns  were  on  file  in  [his?]  ofl&ce,  and  in  speak- 
ing of  his  mission  says: 

Q.  Did  you  go  over  to  Marion  a  short  time  ago,  and  for  what  purpose  ? — A.  I  went 
theie  for  Mr.  Featherston,  to  procure  ths  election  returns  for  Crittenden  County  from 
certain  townships  that  had  not  been  certified  up  to  the  secretary  of  state  from  Crit- 
tenden County. 

Q.  Do  you  make  this  abstract  Exhibit  A  to  your  deposition  ? — A.  Yes. 

[Exhibit  A  to  deposition  of  W.  B.  Eldridge.] 

Abstract  of  poll-books  of  election  held  on  the  6th  day  of  November,  1888, /or  liepreaentative 
in  Congress,  for  the  2nd  Congressional  district  of  the  State  of  Arkansas,  in  Crittenden 
County,  at  thejollowing  precincts  or  voting  places,  and  not  certified  to  the  secretary  of  the 
state  on  account  of  irregularities  in  thepoll-books  appearing  therein,  that  the  judges  and 
clerks  of  said  election  were  not  sworn  as  the  law  dirtcts. 


ound  City... 

'ahiut  Grove 

iradley 

Eduiondsou  ... 

Ricoville 

Gilmore 

aolin 


Total 

W.  H. 

vote. 

Gate. 

147 

14 

189 

49 

208 

4 

90 

15 

45 
45 

7 

64 

61 

L.  P. 
Feather- 
ston. 


133 
137 
195 
75 
46 
35 
2 


clerk's  certificate  to  transcript. 

State  of  Arkansas,  County  of  Crittenden : 

1,  Sam'l  Keel,  clerk  of  the  circuit  court,  within  and  for  the  county  and  State  afore- 
lid,  do  hereby  certify  that  the  annexed  and  foregoing  pages  contain  a  true  and  com- 
>lete  transcript  of  the  above  as  therein  set  forth,  and  as  the  same  appears  of  record, 

ray  office  at  Marion,  Crittenden  County,  Arkansas. 

Witness  my  hand  and  official  seal  this  2l8t  day  of  February,  1889. 

L8EAL.]     "  Sam'l  Keel,  Clerk. 

,  n.  c. 

Q.  I  see  from  the  face  of  the  clerk's  certificate  that  there  is  an  assertion  to  the 
effect  that  the  returns  were  not  sworn  to  as  the  law  directs.  Please  state  the  circum- 
rstancts  under  which  these  words  were  i)nt  upon  the  face  the  certificate. — A.  It  was 
dictated  by  Mr.  Berry,  the  lawyer  of  Mr.  Cate  in  this  contest,  to  the  clerk,  who  wrote 
it  word  for  word  at  his  dictation,  and  only  gave  me  this  abstract  after  mature  consul- 
tation with  Mr.  Cate's  lawyer.     (Printed  Kecord,  page  227-8.) 

In  six  of  the  townships  named,  Mound  City,  Walnut  Grove,  Bradley, 
Edmondson,  Riceville,  and  Gilmore,  the  aggregate  vote  was  as  follows : 

Featherston '. 620 

Cate S9 

Majority  for  Featherston 531 


100  FEATHERSTON    VS.    GATE. 

We  think  this  vote  is  sufficiently  proven,  and  ought  to  be  allowed  the 
contestant. 

It  is  conceded  that  the  majority,  on  the  face  of  the  returns,  for  the 
contestee  is  1,342.  Deduct  the  531  majority  for  Featherstou  in  the  six 
townships.    This  leaves  Gate's  majority  811. 

Scanlan  Township. 

Scaulan  Township  is  one  of  the  townships  included  in  the  clerk's  cer- 
tificate of  votes  not  certified  to  the  secretary  of  State,  and  the  vote 
in  which  we  have  not  included  in  contestant's  vote  in  our  foregoing  com- 
putation. 

The  testimony  in  relation  to  that  township  is  as  follows: 
John  Johnson  (col.),  a  witness  on  behalf  of  the  contestant,  being  first 
duly  sworn,  deposes  as  follows : 

Q.  What  is  your  name? — A.  John  Johnson. 

Q.  Where  do  you  live? — A.  la  Arkansas,  Crittoudeu  County. 

Q.  How  old  are  you  ?— A.  Going  on  forty-six. 

Q.   What  is  your  business  ? — A.  Farmiug. 

Q.  How  long  have  you  lived  in  Arkansas  ? — A.  17  years. 

Q.  What  is  your  voting  precinct  ? — A.  Scanlan. 

Q.  Were  you  there  at  the  last  general  election  ? — A.  Yes,  sir. 

Q.  What's  about  the  usual  vote  of  that  precinct? — A.  Well,  from  100  to  12  !  or  4. 

Q.  How  many  of  those  are  Republicans? — A.  Well,  about  110  or  112. 

Q-  How  many  are  Democrats  ?— A.  About  8  or  9. 

Q.  You  say  you  were  at  the  Presidential  election?— A.  Yes,  sir;  I'm  at  all  of  them, 
but  then  I  was  there  anyhow,  at  that  one  expressly. 

Q.  What  time  did  the  polls  open  ? — A.  Well,  they  said  they  was  to  open  in  the 
morning  at  9  o'clock,  and  close.at  4.  I  couldn't  tell  you  the  real  hour  they  did  open  ; 
they  may  have  opened  before 9  or  after  9,  that  was  the  time  set  to  open,  at  9  o'clock. 

Q.  Was  there  some  people  come  out  to  the  polls  that  day  that  didn't  vote  ? — A. 
They  waited  to  vote,  but  was  afraid. 

Q.  How  many  people  voted  there  ? — A.  I  counted  up  73,  and  they  was  voting  on  ; 
I  didn't  go  away,  but  then  I  went  off  down  the  river  a  little  piece  and  sot  around, 
but  everybody  that  talked  to  me  after  I  come  up  said  they  was  voting  Republican  ; 
there  wasn't  but  two  colored  men  voted  the  Democratic  ticket,  and  one  of  them 
wouldn't  have  done  it  if  they  hadn't  made  him  do  it ;  he  was  a  kind  of  ignorant  sort 
of  person,  and  they  gave  him  the  ticket  and  he  went  on  and  voted  it. 

Q.  How  many  men  did  you  see  voto  that  ticket  that  day  at  the  polls  ? — A.  About 
73,  I  think  73  ;  I  counted  them  particularly. 

Q.  Did  you  have  the  tickets  in  your  hand  ? — A.  Yes,  sir  ;  I  had  about  125  or  130  of 
them — loO,  and  1  reckon  I  give  out  about  30  or  40  of  them  that  day,  and  saw  73  of 
them  voted,  and  stood  and  looked  at  them,  and  saw  pretty  near  every  man  that  voted 
that  day.     I  read  the  ticket  and  knew  I  was  voting  for  Harrison. 

Q.  Who  did  you  think  you  was  voting  for  Congressman  ? — A.  T  just  voted  the 
straight  ticket. 

Q.  Then  this  is  exactly  the  ticket  you  voted  ? — A.  Yes,  sir. 

Q.  And  this  is  exactly  the  ticket' that  you  saw  voted  by  73  other  men  ? — A.  Yes, 
sir. 

Q.  And  you  want  to  file  that  with  your  testimony  as  the  ticket  thatyou  did  vote  ? — 
A.  Yes,  sir  ;  marked  Exhibit  "A." 

Q.  Did  1  he  Republicans  in  your  township  vote  more  solidly  together  than  usual  ? — 
A.  Yes,  sir ;  they  voted  solider  this  election  than  ever  I  known  ;  look  like  the  people 
had  more  privilege  to  vote. 

Q.  You  mean  they  were  more  in  earnest  about  it? — A.  More  in  earnest,  I  should 
have  said  about  it. 

Q.  What  was  the  cause  of  their  earnestness  about  voting  at  this  time  uiore  than  any 
other  time  ? — A.  I  don't  know,  sir;  they  just  thought  it  was  a  Republican  election, 
and  a  great  many  of  them  was  against  Mr.  Cleveland,  and  they  all  come  together 
and  held  a  meeting,  and  they  all  voted  solid  one  way. 

Q.  Do  you  know  that  the  returns  as  sent  up  to  the  clerk's  office  in  your  county 
only  gave  the  Republican  ticket  count  there  two  votes  and  the  Democratic  ticket  59 
votes  ? — A.  No,  sir ;  I  didn't  hear  anything  about  that ;  I  thought  that  the  Repub- 
licans had  all  that  they  put  in,  and  everybody  there,  I  reckon,  thought  that  same 
thing. 
Q.  That  is  what  they  have  returned,  what  do  you  think  about  that  ? — A.  Well,  1 


FEATHERSTON   VS.    CATE.  101 

just  think  they  doue  wrong ;  think  they  done  something  they  had  no  business;  I 
think  there  was  a  fraud  in  it.  Any  man  of  common  sense  would  know  as  many  men 
around  the  polls  voting  75  or  80  or  100  men  and  couldn't  get  but  two  Republicau 
tickets  out  of  thorn.     I'd  a  voted  better  than  that  if  4>hey'd  had  a  gun  on  me. 

Q.  If  the  people  in  your  township  were  voted  properly,  how  many  of  them  would 
turn  out  and  swear  to  have  voted  that  same  ticket  that  you  make  an  exhibit  of, 
there? — A.  45  or  40  or  45. 

Q.  There  is  how  many,  if  they  were  properly  protected ;  you  issued  73  yourself, 
you  say? — A.  I  didn't  issue  that  many,  but  I  saw  that  many  polled  from  other  hands 
that  was  handed  around,  and  counted  them  every  one. 

Q.  If  they  were  properly  protected,  are  you  satisfied  those  73  men  would  turn  out 
and  testify  that  they  did  vote  that  ticket?— A.  Yes,  sir;  they  would;  they'd  come 
right  here  to-day  and  tell  you  any  where. 

Q.  ilow  long  have  you  been  voting  at  that  precinct? — A.  Ten  years. 

Q.  And  yon  say  the  Republicau  vote  there,  in  a  fair  election,  is  about  how  many  T — 
A.  About  112  or  113. 

Q.  And  how  much  you  say  the  Democratic  vote  is? — A.  About  8  or  9,  some  elec- 
tions, in  the  county  elections  there's  some  15  or  20  or  25  Democrats,  'cause  they  got 
darkies  mixed  in  with  them. 

Q.  Did  all  of  the  Republicans  that  voted  vote  the  Republican  ticket  at  this  elec- 
tion ?— A.  Yes,  sir. 

Q.  Was  the  usual  number  of  Democrats  at  the  polls? — A.  Yes,  sir;  most  all  the 
white  men  that  was  there  was  at  the  polls;  the  biggest  part  of  them. 

Q.  Can  you  furnish  me  the  names,  furnish  me  a  list  of  these  73  voters  that  you 
speak  of  as  having  voted  the  Republican  ticket? — A.  Yes,  sir ;  I  can  do  it;  I  think  I 
can  give  every  man's  name. 

And  further  this  deponent  sayeth  not.    (Printed  record,  pages  216  217.) 

Scanlan. 

Willis  McGee  (col.),  a  witoess  on  behalf  of  the  contestant,  being  first 
duly  sworn,  testified  as  follows: 

(Tin  ballot-box  made  Exhibit  A  to  this  deposition.) 

Q.  What  is  your  name  ? — A.  Willis  McGee. 

Q.  Where  do  you  live? — A.  Scanlan's. 

Q.  What  eounty  ?— A.  Crittenden. 

Q.  What  State  ? — A.  State  of  Arkansas. 

Q.  How  old  are  you  ? — A.  I  am  about  39  or  40  years  old. 

Q.  What  is  your  business? — A.  Farming. 

Q.  How  long  have  you  lived  there  ?— A.  I  went  there  in  1878,  been  there  ever  since. 

(Ballot-box  made  Exhibit  A  to  the  deposition.) 

Q.  This  tin  box,  made  Exhibit  A  to  your  deposition,  that  I  now  have  in  my  hand 
Jiere,  did  you  ever  see  a  box  like  that  in  the  State  of  Arkansas  ?— A.  I  did,  sir. 

Q.  When? — A.  Time  the  election  was  going  on. 

Q.  For  what  purpose,  if  any,  was  the  box  then  used? — A.  To  put  votes  in. 

Q.  What  election  is  that  that  you  refer  to  ? — A.  The  Presidential  election.  It  was 
Bed  at  both  the  elections  ;  at  the  Presidential  election  and  State  and  county  elec- 
lon. 

Q.  Are  you  absolutely  certain  it  was  a  box  of  that  precise  description  that  you 
iw  at  those  two  elections  ? — A.  Yes,  sir. 

Q.  Were  the  judges  of  that  election  to  which  you  refer,  at  which  this  box  or  one 
let  like  it  was  used — were  the  judges  of  that  election  Democrats  or  Republicans? — 
,.  Democrats. 

Q.  What  is  the  usual  vote  in  your  township?— A.  About  125. 

Q.  How  many  Democrats? — A.  About  from  25  to  30. 

Q.  The  usual  Democratic  vote  there  is  what?— A.  About  25  or  30. 

Q.  What  is  the  usual  Republican  vote  of  that  township?— A.  From  100  to  125. 

Q.  Do  you  know  at  that  election  to  which  you  refer,  do  you  know  how  many 
Republican  votes  were  cast  at  that  election  ?— A.  No,  sir  ;  I  do  not  know  exactly  how- 
many  was  cast. 

Q.  How  many  did  you  see  cast?— A.  I  seen  about  nine  or  ten. 

Q.  You  are  certain  you  saw  at  least  nine  or  ten  ? — A.  Yes,  sir ;  I'm  certain  of  that. 

Q.  Do  you  know  the  name  of  those  parties  to  whom  you  refer  that  voted  the  Repub- 
lican ticket  at  the  national  election  ? — A.  Yes.  sir. 

Q.  Please  make  a  list  of  those  names  and  file  it  as  Exhibit  B  to  yoar  deposi- 
tion.— A.  I  do  so. 

Q.  Did  you  see  those  men  vote  that  ticket  ?— A.  I  did,  sir. 

Q.  You  know  it  was  a  Republican  ticket?— A.  Yes,  sir. 


102  FEATHERSTON   VS.    GATE. 

Q.  Were  a  good  many  men  oat  at  the  polls  tbat  day  Eepiiblicatis?— A.  Right  smart, 
and  it  was  raining,  and  a  heap  didn't  come. 

Q.  Was  a  good  many  there  didn't  vote? — A.  Yea,  sir. 

Q.  What  was  the  reason? — A.  The  reason  was  they  had  a  great  time  in  the  time  of 
the  county  election,  and  the  boys  said  it  wasn't  no  use  in  voting  ;  that  they  do  just 
as  they  choose,  and  they  didn't  have  no  show  there ;  they  said  they  all  voted  Repub- 
lican before  solid  out  through,  and  they  beat  them  at  Scanlan'sand  every  body  voted 
Republican  at  Scanlan's,  and  they  beat  them. 

Q.  Were  they  counted  ? — A.  Wever  were  counted  ,•  that  was  the  question. 

Q.  Then  I  want  you  to  stirte  the  reason  they  didn't  take  any  more  interest,  and 
didn't  vote? — A.  Because  they  said  they  all  voted  Republicans  at  the  election,  and 
when  the  outcry  come  they  said  everybody  had  voted  Democratic  tickets,  and  they 
said  it  wasn't  no  use  for  them  to  go  there  to  vote ;  that  was  the  reason. 

Q.  Are  you  satisfied  that  other  people  voted  the  Republican  ticket  besides  those 
you  saw  vote  it? — A.  Yes,  sir;  they  said  so,  but  I  knew  these  I  did  see  vote  it. 

Q.  Do  you  know  that  they  returned  for  that  township  only  two  Republican  votes? — 
A.  No,  sir. 

Q.  You  iust  stated  that  the  usual  Republican  vote  down  there  was  about  125  or 
130  ?— A.  Yes,  sir. 

Q.  Usual  Democratic  vote  is  about  25? — A.  Yes,  sir. 

Q.  Your  usual  majority  there,  then,  was  about  100? — A.  Yes,  sir. 

Q.  You  are  satisfied  this  box  was  used  at  both  elections  ? — A.  Yes,  sir. 

Q.  Who  was  the  Democratic  candidate  for  sheriff'  of  Crittenden  County? — A.  Mr. 
Warner. 

And  further  this  deponent  saysth  not. 

Willis  (his  x  mark)  McGee. 

Deposition  of  E.  B.  Fields  (col.),  a  witness  on  behalf  of  the  con- 
testant, being  first  duly  sworn,  testified  as  follows : 

Q.  What  is  your  name  ? — A.  E.  B.  Fields. 

Q.  Where  do  you  live? — A.  I  live  at  Scanlan's,  Crittenden  County,  Arkansas. 

Q.  How  old  are  you? — A.  34. 

Q.  How  long  have  you  lived  there? — A.  Ever  since  1876. 

Q.  Do  you  see  this  tin  box  that  I  show  you  here?— A.  Yes,  sir;  I  examined  a  box 
of  that  kind  about  two  days  before  the  election ;  helped  tote  it  out  towards  where  my 
home  is. 

Q.  Whereabouts  was  that  place? — A.  Scanlan's. 

Q.  In  whose  possession  was  that  box  ? — A.  J.  J.  Ward,  a  white  gentleman  living 
down  there ;  a  Democrat. 

Q,  Does  he  hold  any  official  position  tbere  ? — A.  None  at  all,  sir. 

Q.  Was  he  one  of  the  judges  of  the  election  there? — A.  Yes,  sir  ;  he  was  one  of  the 
jndges  of  election  at  Edmondson  Station. 

Q.  You  said  that's  the  box  he  had  in  his  possession  ? — A.  Yes,  sir. 

Q.  Did  you  vote  at  the  Presidential  election  at  your  voting  place  last  November? — 
A.  Yes,  sir. 

Q.  Do  you  know  what  disposition  was  made  of  your  vote  ?— A.  No,  sir ;  not  more 
than  I  carried  my  ticket  in  and  they  took  it  and  kinder  folded  it  up  and  stuck  it  in 
that  box  there. 

Q.  Put  it  in  a  box  of  the  same  appearance  as  that  ? — A.  Yes,  sir ;  same  kind  of 
tupelo  as  that  is.  I  don't  know  what  route  it  went,  but  I  see  them  put  it  in  at  the 
top. 

Q.  Do  you  know  what  is  the  vote  of  that  box  over  there;  what  is  the  Republican 
vote  at  your  precinct? — A.  About!  00  and  125. 

Q.  What  is  the  Democratic  vote  there? — A.  About  25,  sir. 

Q.  Do  you  know  whether  there  was  any  Republican  votes  cast  there  that  day  or 
not? — A.  Yes,  sir ;  I  give  several  of  them  tickets,  and  they  sealed  them  up  and  said 
they  was  going  to  vote  them  just  like  they  was;  didn't  open  them  at  all. 

Q.  How  many  did  you  give  tickets  to  ? — A.  I'm  certain  I  give  four  ;  I  give  tickets 
to  several,  but  I  didn't  know  what  they  did  with  them;  Imt  I  gave  tickets  to  some 
and  they  held  Miem  in  their  hands  like  they  were  afraid  they'd  get  away  from  them. 

Q.  Why  didn't  you  take  any  more  interest  in  the  election  that  day? — A.  In  the 
State  and  county  election  I  got  disgusted,  and  I  didn't  take  no  more  interest  in  it 
afterwards.  It  was  the  fashion  to  vote  and  I  just  thought  I'd  vote  because  it  was  a 
fashion ;  didn't  do  any  good. 

Q.  Why  not? — A.  We  usually  have  a  great  large  majority,  and  the  county  election 
was  decided,  and  the  Democrats  were  14  or  1,500  ahead,  and  I  didn't  think  there  was 
no  use  for  voting  because  we  always  voted  the  same. 

Q.  What's  the  reason  you  didn't  have  any  confidence  in  it? — A.  I  didn't  think  it 
was  counted  at  all,  sir. 


FEATHERSTON   VS.   CATE.  103 

Q.  How  many  boxes  of  this  description  and  fashion  did  you  see  over  thcic  in  that 
election  ? — A.  Seen  two  in  the  county  election. 

Q.  Where  were  they  used? — A.  One  was  used  at  Scanlan's,  and  the  other  there 
was  a  tag  on  it  for  Edmondson  Station.     I  looked  at  the  tag  myself. 

Q.  Do  you  know  who  sent  those  boxes  down  there,  these  election  boxes  to  which 
you  refer?— A.  They  said  Mr.  Warner  sent  them  down  there. 

Q.  Who  said  so? — A.  Mr.  Jerry  Ward  told  me  so. 

Q.  Was  Mr.  Warner  the  judge'  of  any  of  the  elections  there?— A.  No,  sir;  he's  the 
sheriff  of  the  county. 

Q.  Is  he  a  Democrat  or  Republican? — A.  He's  a  Democrat,  I  reckon.  The  colored 
people  first  taken  him  up. 

Q.  Were  the  judges  and  clerks  of  this  election  at  which  you  say  these  Republican 
votes  were  cast  Democrats  or  Republicans? — A.  Straight-out  Democrats,  sir. 

Q.  All  Democrats  ? — A.  All  Democrats,  sir. 

Q.  Were  they  red-hot  Democrats  ? — A.  Right  square  out,  sir. 

Q.  Were  there  any  disturbance  or  rows  there  on  the  day  of  election  ? — A.  When 
the  State  and  county  election  was? 

Q.  Were  there  any  in  the  Presidential  election  ? — A.  No,  sir;  it  was  a  kind  of  a  day 
like  this;  it  was  raining  all  day  most;  didn't  have  no  fuss  that  day. 

Q.  If  the  Republican  voters  there  had  believed  their  votes  would  have  been  counted 
do  you  think  there'd  have  been  more  people  there  that  day  than  there  was  ? — A.  Yes, 
sir  ;  I  think  there'd  have  been  more.  Always  turn  out  in  full  force  when  they  have 
confidence. 

Q.  Who  was  the  sheriff  before  this  elecfton  ;  before  the  last  election  ? — A.  W.  F. 
Warner. 

Q.  Was  he  re-elected? — A.  Yes,  sir. 

Q.  On  what  ticket  ? — A.  On  the  Democrat  ticket,  sir. 

Q.  And  you  say  he  was  one  of  the  gentlemen  who  had  these  ballot-boxes  like  this 
sent  down  there  ? — A.  Yes,  sir.     (Printed  record,  page  215.) 

Tt  appears-irom  this  testimony  that  John  Johnson  saw  73  Republi- 
cans vote  the  Republican  ticket,  and  that  others  voted  after  that;  and 
that  the  Republican  vote  of  the  township  was  112  or  113.  E.  B.  Fields 
swears  the  judges  were  all  Democrats  and  that  they  had  the  fraudu- 
lent tin  box.  Willis  McGee  swears  that  the  judges  were  all  Demo- 
crats, that  there  was  a  good  turn-out  of  the  Republicans,  and  that  there 
was  from  100  to  125  Republicans  in  the  township.  The  return  shows 
two  votes  for  contestant. 

On  this  state  of  proof  the  question  is :  How  many  votes  should  be 
allowed  the  contestant  ? 

It  was  held  in  Bisbee  vs.  Finley  that : 

Where  the  evidence  shows  a  return  to  be  false,  and  not  a  true  statement  of  the 
votes  cast,  such  return  is  impeached  and  destroyed  as  evidence,  and  the  true  vote  may 
be  proven  by  calling  the  electors  whose  names  are  on  the  poll-books  as  voting  at  such 
poll,  and  no  votes  not  otherwise  proven  should  be  counted. 

Under  this  rule,  and  we  know  of  no  exception  to  it,  the  return  must 
be  rejected. 

The  rejection  of  the  return  does  not  necessarily  leave  the  votes  ac- 
tually cast  at  a  precinct  uncounted.  It  only  declares  that  the  returns, 
having  been  shown  to  be  false,  shall  not  be  taken  as  true,  and  the  par- 
ties are  thrown  back  upon  such  other  evidence  as  it  may  be  in  their 
power  to  produce  in  order  to  show  how  many  votes  and  for  whom ;  so 
that  the  entire  vote,  if  suflflcient  pains  be  taken  and  the  means  are  at 
hand,  may  be  shown  and  not  a  single  one  be  lost  notwithstanding  the 
falsity  of  the  returns. 

The  contestant  shows  that  he  received  73,  and  perhaps  more  votes, 
and  these,  we  think,  should  be  allowed  him.  Deduct  these  from  Gate's 
remaining  majority  and  the  vote  stands  thus : 

Gate's  majority 911 

Deduct  the 73 

Leaving  Gate's  majority 738 


104  FEATHERSTON   vs.    GATE. 

The  return  having  been  overthrown,  and  the  contestee  having  failed 
to  prove  any  vote  in  the  township,  is  not  allowed  the  61  returned  for 
him. 

Gat  Island. 

In  relation  to  Oat  Island  precinct  the  testimony  is  as  follows : 

Kobert  Abernathy  (col.)j  a  witness  on  behalf  of  the  contestant,  being 
first  duly  sworn,  deposes  as  follows: 

Q.  Wbat  is  your  name  ? — A.  Robert  Abernathy. 

Q.  Where  do  you  live  ? — A.  I  live  at  Cat  Island. 

Q.  How  old  are  you  ? — A.  1  don't  know  truthfully;  I  am  something  over  40,  though. 

Q.  What  is  yaur  busiuess? — A.  Well,  I  farm  a  little. 

Q.  Are  you  a  planter?— A.  Well,  I  planted  last  year;  I  reckon  I  will  some  this 
year,  but  then  I'm  not  an  extensive  farmer. 

Q.  Can  you  read  and  write  ? — A.  Yes. 

Q.  Did  you  vote  at  the  last  election — the  national  election  ? — A.  I  did. 

Q.  Where  did  you  live  previous  to  that  time  ? — A.  Alcorn  County,  North  Missis- 
sippi. 

Q.  How  many  white  people  were  there  t — A.  About  twenty-five. 

Q.  And  the  rest  of  the  voters  were  all  colored  ? — A.  All  colored. 

Q.  Do  you  know  who  those  colored  voters  voted  for  iu  the  last  election  ? — A.  Gen- 
eral Republicans;  nine-tenths  of  them  were  Republicans;  I  heard  them  say  prior  to 
the  time  they  would  vote  that  ticket  under  all  hazards;  then  when  the  tickets  were 
issued  they  come  there  through  the  rain  aud  got  tlie  ticlvets  and  went  to  the  island, 
and  I  seed  no  other  ticket  during  the  day  but  the  Republican  ticket.  There  was  no 
other  exhibited  publicly. 

Q.  How  do  you  know  the  Republican  ticket  ? — A.  Well,  there  ws^  Harrison  aud 
his  electors  and  Eeatherston  on  it ;  I  voted  it  for  a  Republican  ticket ;  if  I  failed  I'm 
just  here  under  a  mistake.  We've  had  them  together  two  or  three  times  since,  and 
there  was  only  three  men  that  said  at  each  meeting  that  they  did  not  vote. 

Q.  You  say  you  voted  the  Republican  ticket? — A.  I  did. 

Q.  Do  you  know  whether  that  ticket  was  put  in  the  box  or  not?— A.  Yes,  sir;  I'm 
most  safe  in  saying  it  were,  and  I  seen  where  the  chairman  .tliere  couldn't  see  the 
box.  When  I  came  up  a  man  challenged  me  and  says,  "  Has  Abernathy  a  right  to 
vote?"  One  of  the  judges  of  election  says  "Yes  ;  I  have  known  Abernathy  over  two 
years,  he  has  a  right  to  vote,"  and  he  turned  and  pnt  my  ticket  in  the  box ;  that's 
how  I  come  to  see  it;  if  he  had  not  turned  I  would  not  have  seen  it. 

Q.  Were  there  any  Republican  judges  there  at  that  time  ? — A.  There  was  none. 

George  Hendley  (col.)  a  witness  on  behalf  of  the  contestant,  being 
first  duly  sworn,  deposed  as  follows  : 

Q.  What  is  your  name? — A.  George  Hendley. 

Q.  Where  is  your  residence? — A.  In  Crittenden  County,  Arkansas. 

Q.  What  is  your  age? — A.  bl. 

Q.  What  is  your  occupation? — A.  I'm  a  farmer  and  sometimes  I  teach  school. 

Q.  I  want  to  know  about  the  usual  number  of  voters  in  your  township? — A. 
Usually  we  have  always  voted  from  196  to  200,  always,  in  the  township. 

Q.  What  proportion  of  them  were  Democrats;  about  how  many  Democrats  were  in 
the  township  ? — A.  Well,  we  have  generally  been  known  to  be  about  from  14  to  15. 

Q.  How  many  Republicans? — A.  We  have  been  known  to  be  from  180  to  182  and 
three  and  four  and  so  on. 

Q.  Did  you  vote  on  the  November  election? — A.  Yes,  sir;  I  did. 

Q.  Did  the  Republican  voters  iu  your  township  turn  out  jjretty  well  ? — A.  Yes,  sir ; 
they  voted  out  very  well. 

Q.  You  consider  it  a  full  vote  that  day  ? — A.  Yes,  sir;  I  considered  it  nearly  a  full 
vote ;  not  quite  as  many  as  voted  in  the  county  election, 

Q.  Was  the  regular  Republican  ticket  voted  by  the  Republicans  on  that  day  ? — A. 
Yes,  sir. 

Q.  Have  you  got  a  copy  of  that  ticket  with  you  ? — A.  I  haven't  one  with  me,  but  I 
can  describe  it;  it  was  a  red  ticket  with  a  calico  back  to  it. 

Q.  Did  many  of  the  Republicans  scratch  their  tickets  ? — A.  There  did  n't  any  scratch, 
it  as  I  saw,  and  I  don't  believe  any  scratched  it. 

Q.  Did  any  of  the  Republicans  to  your  knowledge  vote  any  other  ticket  ? — A.  None 
whatever  to  my  knowing. 

Q.  Were  they  as  much  as  usual  interested  in  that  election  ? — A.  Yes,  sir. 


m 


FEATERSTON   VS.    GATE.  105 

Q.  About  what  is  the  usual  Democratic  vote,  did  you  say,  of  tbe  townsWp  ? — A.  It 
generally  has  been  about  from  13  to  15. 

Q.  That's  about  as  many  of  the  Democratic  voters  as  you  have  ever  known  to  vote 
there  ?— A.  Yes,  sir. 

Q.  That  pink  ticket  had  who  on  it  for  Congressman  ? — A.  L.  P.  Featherston. 

Q.  Do  you  know  of  any  of  the  Republicans  for  W.  H,  Gate  for  Gongressman  T — A. 
I  do  not. 

Q.  Did  the  Republicans  all  vote  the  Republican  ticket  in  the  last  election? — A. 
They  did  as  far  as  I  know ;  in  fact  I  saw  most  of 'them  all  vote  ;  they  all  voted  it; 
they  all  told  me  they  would  vote  the  Republican  ticket;  I  saw  a  great  many  of  them 
vote  it.  and  the  majority  of  them  told  me  afterwards  that  they  had  voted  the  Repub- 
lican ticket. 

Q.  Was  there  any  special  reason  why  they  were  more  anxious  that  the  Republican 
paity  should  succeed  in  the  last  election  than  before ? — A.  Yes,  sir. 

Q.  What  was  that  reason? — A.  Because  there  had  been  a  great  trouble  occurred  in 
the  county,  and  the  people  were  very  much  dissatisfied  from  the  treatment;  the  Re- 
publicans, and  more  especially  the  colored;  I  know  they  were  very  much  dissatisfied 
aiid  they  wanted  all  officers  elected  with  Republican  men  in  them. 

Q.  For  what  purpose? — A.  In  order  that  they  might  get  justice. 

Q.  Where  do  you  live? — A.  I  live  in  Gat  Island. 
Q.   How  long  have  you  lived  there  ? — A.  I  been  living  there  7  years. 
Q.  What  is  the  name  of  your  voting  precinct? — A.  Gat  Island.     (Printed  record, 
page  187-8-9.) 

George  Hendley,  in  speaking  of  whether  the  judges  and  clerks  were 
sworn,  testifies : 

Q.  Do  you  know  whether  the  judges  and  clerks  of  election  were  sworn  ? — A.  If  they 
were  sworn,  I  don't  know  who  swore  them;  at  that  time  I  were  acting  justice  of 
the  peace  there,  and  of  course  I  know  I  didn't  swear  them  myself,  and  I  were  the 
only  justice  of  the  peace  that  were  in  the  township,  and  if  they  were  sworn  I  don't 
know  who  swore  them. 

Q.  Are  you  justice  of  the  peace  at  present? — A.  No,  sir. 

Q.  Were  you  a  candidate  at  the  last  election? — A.  No,  sir. 

Q.  You  have  no  interest  in  this  only  to  tell  the  truth  ? — A.  That's  my  only  interest 
I  have. 

George  Hendley,  in  speaking  of  the  position  of  the  ballot-box,  testi- 
fies : 

Q.  Was  the  box  always  put  where  you  can  see  all  around  it  ? — A.  No,  sir ;  the  box 
was  in  a  place  where  I  couldn't  see  the  box;  I  don't  remember  of  having  seen  the 
box. 

Q.  Gould  you  see  whether  your  ticket  was  put  in  the  box  or  not  ? — A.  I  never  saw 
the  box  at  all:  I  only  handed  my  ticket  in  to  the  man  that  was  setting  in  the  win- 
dow, or  near  the  window,  and  I  didn't  know  whether  he  put  my  ticket  in  the  box  or 

not. 

•  •••••• 

Q.  Has  the  custom  there  been  to  put  the  boxes  in  such  a  shape  that  the  voters 
couldn't  see  it  when  they  were  voting? — A.  No,  sir;  it  never  was  the  case  before. 

Q.  Was  it  this  time? — A.  Yes,  sir;  it  was  out  of  sight  this  time  :  we  couldn't  see  it. 
(Printed  record,  page  188.) 

George  Hendley,  in  speaking  of  the  judges  of  election  at  Cat  Island 
precinct,  testifies : 

Q.  Who  wci-e  the  judges  of  election  in  your  township  ? — A.  Dr.  Stewart  and  Otto 
Sypules,  and  I  forgotten  who  the  others  was. 

Q.  Were  they  Democrats  or  Republicans  ? — A.  They  were  all  Democrats. 

Q.  Did  you  have  any  Republican  judges  of  election  the  last  election  ? — A.  No,  sir; 
we  did  not. 

Q,  They  were  all  Democrats? — A.  All  Democrats. 

Q.  Do  you  know  whether  that  is  the  condition  of  affairs  in  other  parts  of  the 
county  or  not  ? — A.  I  do  not  know,  but  I  have  heard  that  it  was.  (Printed  record, 
page  188.) 

It  appears  from  this  testimony  that  the  Eepublicans  turned  out  well  5 
that  they  did  not  scratch  the  ticket  j  that  the  fraudulent  ballot-box  was 


106  FEATHERSTON   VS.    CATE. 

used  ;  that  Republicans  before  the  election  had  met  and  agreed  to  vote 
their  ticket  at  all  hazards ;  that  there  were  from  liSO  to  182  Republicans 
in  the  township;  that  the  judges  were  all  Democrats;  that  there  were 
not  more  than  14  or  15  Democrats  in  the  township;  that  there  was  a 
full  vote  by  the  Republicans;  that  the  judges  were  not  sworn  ;  that  the 
ballot-box  was  so  placed  that  the  voter  could  not  see  it. 

The  return  shows  120  for  Featherston  and  88  for  contestee,  and  the 
question  is,  under  the  proof,  what  ought  to  be  done? 

The  total  vote  cast  is  208,  and  the  proof  is  that  there  are  but  15  Dem- 
ocrats in  the  township,  and  that  the  Republicans  did  not  scratch  their 
ticket.  By  giving  the  Democrats  their  full  vote,  Featherston  ought  to 
have  received  193  votes  out  of  the  208,  and  he  is  returned  as  receiving 
120. 

In  view  of  the  conduct  of  the  partisans  of  the  'contestee  in  Critten- 
den County  whereby  the  contestant  and  his  attorneys  were  prevented 
from  taking  testimony  and  which  will  be  referred  to  hereafter,  strict 
and  technical  proof  will  not  be  required. 

We  think  the  true  rule  was  laid  down  in  the  case  of  Smalls  vs.  Elliott, 
session  of  1888-'89,  by  the  minority  of  the  committee,  where  it  is  said : 

Contestee's  partisan  frieuds  deliberately  violate  the  law  in  suppressing  the  box, 
and  contestee  bimself  (acting  throngh  bis  counsel),  by  force  and  threat  of  violence, 
suppresses  and  hinders  the  judicial  inquiry  as  to  the  l>ox  and  its  contents. 

Siqyjiressio  veri  —  8iigfiefiiio  falsi.  All  things  are  presumed  against  him  who  sup- 
presses the  truth  and  prevents  inquiry. 

Shall  contestee  be  permitted  to  take  advantage  of  his  own  wrong,  and  of  the  will- 
ful and  criminal  violation  of  the  law  by  his  partisan  friends?  Is  the  sin  of  the  guilty 
to  be  visited  on  the  innocent?  Shall  he  who  suppresses  the  best  evidence  by  force, 
fraud,  and  violence,  stand  up  in  the  face  of  the  court  of  last  resort  and  insist  that 
secondary  evidence  shall  not  be  produced  and  admitted  ? 

In  this  case,  assuming  the  testimony  to  be  true,  and  we  do  not  doubt 
but  that  it  is  true,  it  appears  that  before  the  election  every  provision 
looking  to  a  fair  and  honest  election  was  violated,  and  that  after  the 
election  every  attempt  to  show  the  true  vote  was  suppressed  by  the 
l)artisan8  of  the  contestee. 

We  think  the  proof  clearly  shows  that  the  contestee  could  not  have 
received  more  than  15  votes  in  Cat  Island  Township,  if  that  many. 
Therefore,  we  give  to  the  contestant  73  votes  more  than  were  returned 
for  hiin,  and  deduct  73  from  the  vote  returned  for  contestee.  These 
two  changes  aggregate  146.    The  result  would  then  stand  thus : 

Gate's  majority 736 

Deduct  tlie 146 

Leaving  Gate's  majority 592 

Crawfordsville  precinct. 

In  relation  to  the  Crawfordsville  precinct  the  testimony  is  as  fol- 
lows : 

James  Brown  (col.),  a  witness  on  behalf  of  the  contestant,  being  first 
duly  sworn,  testified  .as  follows: 

Q.  What  is  your  name? — A.  .James  Brown. 

Q.  Where  do  you  live? — A.  Crawfordsville,  Crittenden  County,  Arkansas. 

Q.  How  long  have  you  lived  there? — A.  Been  living  there  now  goiug  on  four 
years. 

Q.  What  is  your  business  ? — A.  Farming. 

Q.  How  old  are  you  ? — A.  The  25  of  this  coming  month  I'll  be  41  years  old. 

Q.  Did  you  vote  for  the  national  ticket  at  the  election  held  in  November  for  Presi- 
dent and  members  of  Congress  in  Crittenden  County,  Ark.  f— A.  Yes,  sir;  my  inten- 
tion was  to  vote  the  Kepublican  ticket  straight  out. 


I 


FEATHERSTON   VS.    CATE.  107 

Q.  Do  you  koow  whether  you  did  or  not? — A.  I  don't  know  whether  I  did  or  uot, 
hut  I  voted  the  ticket  that  they  gave  nie,  that  they  Bay  was  Republican. 

Q.  Who  gave  you  that  ticket  ? — A.  The  ticket  I  voted  I  got  from  Henry  Davis. 

Q.  Was  he  a  Democrat  or  Republican  ? — A.  He  was  claimed  to  be  a  Republican  ; 
he  goes  for  a  Republican. 

Q.  Do  you  see  this  box  that  I  have  in  my  hand  here  ? — A.  Yes,  sir. 

Q.  With  this  peculiar  device  on  top  of  it  here? — A.  Yes,  sir  ;  I  see  that  box  now. 

Q.  Did  you  ever  see  one  like  it  before? — A.  I  didn't  see  one  exactly  like  that,  but 
it  had  more  of  a  shape — come  like  that ;  they  had  two  divisions  in  it.  I  seen  the 
top  of  the  box  just  like  I  look  at  the  top  of  that  one  now.  Two  places  cut  in  that  box 
like  it  was  cut  for  the  tickets  to  go  in  each  one  of  those  holes;  that's  the  way  that 
box  was ;  there  was  two  places  in  the  top  of  that  box. 

Q.  Then,  the  box  you  saw  was  just  like  this  one? — A.  Yes,  sir. 

Q.  Yon  saw  a  box  like  this  one,  then,  at  Crawfordsville  that  was  formed  on  top  for 
the  reception  of  tickets  like  that  one  is  formed? — A.  Yes,  sir;  just  like  that  one  was 
formed. 

Q.  You  say  your  intention  was  to  vote  the  Republican  ticket? — A.  Yes,  sir. 

Q.  Did  yon  cast  your  ballot? — A.  Yes,  sir;  I  went  to  the  door  and  handed  it  to  the 
man  that  was  placed  there  to  take  the  tickets. 

Q.  What  did  he  do  with  it? — A.  He  cast  it  around  to  the  box ;  I  seen  him  carry  it 
to  the  place  that  was  to  put  the  tickets  in,  but  whether  it  went  inside  of  the  box  I 
do  not  know.  We  all  was  standing  out  in  the  rain  anyway,  and  wanted  to  get 
through  as  quick  as  we  could. 

Q.  Was  that  the  ballot-box  ? — A.  Yes,  sir. 

Q.  Was  it  made  out  of  tiu  ? — A.  Yes,  sir. 

Q.  Then,  so  far  as  you  could  see,  it  was  a  box  constructed  like  that  ? — A.  Yes, 
sir. 

Q.  You  say  you  gave  your  ticket  to  some  one.  Who  was  that  f — A.  A  man  that  was 
called  Willis  Raspberry, 

Q.  Was  he  a  Democrat  or  Republican  ? — A.  Well,  he's  a  Democrat. 

Q.  Do  you  know  the  judges  of  the  election  that  day  ? — A.  Laurin  Butler  were  one  ; 
Bob  Jinley  was  the  other;  Jim  Hooxbul  was  the  other. 

Q.  Were  any  of  those  men  Republicans  ? — A.  No,  sir. 

Q.  Were  tbey  all  Democrats? — A.  They  were  all  Democrats. 

Q.  If  this  testimony  that  you  are  now  giving  was  taken  at  Crawfordsville  would 
you  testify  ? — A.  I  will  if  I'm  living  and  the  Lord  spares  me. 

Q.  Have  you  ever  seen  any  of  these  boxes  anywhere  except  at  Crawfordsville  ? — 
A.  No,  sir. 

Q.  Do  you  know  what  became  of  the  ballot-box  there  after  that  day  ?  -A.  No,  sir. 

Q.  You  say  your  intention  was  to  vote  the  Republican  ticket  ? — A.  The  Republican 
ticket  straight  out,  the  ticket  that  they  say  Mr.  Featherston  was  on.  That  was  a 
red  ticket.     That's  the  ticket  I  voted. 

Q.  Do  you  know  whether  the  negroes  of  that  county — whether  they  intended  to 
vote  the  Republican  ticket  or  the  Democratic  ticket  ? — A.  Their  whole  intention  was 
to  vote  the  Republican  ticket  straight  out.  Our  intention  was  before  we  started, 
before  the  election  come  to  an  end — our  intention  was  to  vote  the  Republican  ticket 
to  beat  out  that  Winchester  crowd.     That  was  our  intention, 

Q.  Who  was  that  Winchester  crowd  composed  of  ?— A.  Andrew  Martin  and  Sheriff 
Werner. 

Q.  Were  they  Democrats  or  Republicans? — A.  Democrats,  (Printed  record,  page 
218-19.) 

Giles  Shenault  (col.),  a  witness  on  behalf  of  the  contestant,  being  first 
duly  sworn,  tstified  as  follows : 

Q.  What  is  your  name  ? — A.  Giles  Shenault. 

Q.  Where  do  you  live  ? — A.  Crawfordsville,  about  three  miles  southwest  of  Craw- 
fordsville, Crittendon  County,  Arkansas. 

Q.  How  old  are  you  ? — A.  Nearly  52. 

Q.  How  long  have  you  been  there? — A.  Going  on  eight  years. 

Q.  Did  you  vote  at  the  last  Presidential  election  held  in  the  State  of  Ark.  in  No- 
vember, 1888  ?— A.  Yes,  sir. 

Q.  Did  yon  vote  the  Republican  or  Democratic  ticket? — A.  Well,  I  voted  the  red 
ticket  they  called  the  Republican  ticket. 

Q.  What  ticket  did  you  intend  to  vote,  the  Republican  or  Democratic  ticket?— A, 
The  Republican  ticket's  what  I  was  after. 

Q.  Do  you  see  this  tin  box  that  I  have  in  my  hand  here  ? — A,  Yes,  sir. 

Q.  Did  you  ever  see  one  like  that  before  ? — A.  I  think  that  one  we  had  right  yonder 
was  like  that. 

Q.  What  do  you  mean  ?— A.  At  Crawfordsville. 


108  FEATHEESTON    VS.    CATE 

Q.  What  time  did  you  see  it  there?— A.  The  morning  of  the  Pietsiiloutial  olcction 

Q.  That  took  place  when  ? — A.  In  November. 

Q.  What  year?— A.  1888. 

Q.  Where  did  you  see  that  box  that  you  mention  ?— A.  I  saw  it  there  in  the  drug 
store. 

Q.  Whose  drug  store  ? — A.  Dr.  Haden's. 

Q.  For  what  purpose  was  that  box  being  used  ?— A.  They  said  it  was  a  ballot-irox, 
hiid  the  tickets  in  there. 

Q.  You  say  you  voted  the  Eepublioan  ticket  that  day  ?— A.  That  was  my  aim  ;  I 
voted  the  ticket  they  called  the  Republican  ticket. 

Q.  What  became  of  that  ticket  ?— A.  I  don't  know  what  went  with  it ;  I  handed 
it  to  a  man  setting  at  the  box,  and  he  poke  it  down  there.     I  don't  know  where  it 

WfUt. 

Q.  Was  the  box  he  put  the  ticket  in  precisely  like  this?— A.  I  never  seed  nothing 
took  off  of  the  top  like  that — the  mouth  imitating  that. 

*■»»««»* 

Q.  Who  was  the  gentleman  you  gave  your  ticket  to,  that  put  it  in  the  box?— A. 
Raspberry. 

Q.  Is  he  a  Democrat  or  Republican  ? — A.  He's  a  Democrat,  I  reckon ;  what  we  call 
him. 

Q.  Was  he  one  of  the  clerks  of  the  election  that  day  ? — A.  Yes,  sir ;  he  was  in  there 
with  them  ;  he  was  constable ;  he  was  the  man  that  showed  the  box,  'cause  he  opeued 
it ;  pulled  it  open,  and  turned  it  over  that  way  as  you  see  tiiero,  and  no  tickets  in  it; 
that  Avas  Raspberry  ;  ho  was  considered  to  be  the  constable  there,  and  I  was  the  first 
man  that  voted,  and  it  was  raining,  and  I  handed  the  ticket  in  to  him,  and  stepped 
right  back;  we  was  very  much  crowded  ;  it  was  pouring  down  rain,  and  he  took  the 
ticket  and  appeared  to  be  putting  it  down  in  the  box  that  wav.  (Printed  record, 
page  212.) 

It  appears  from  this  testimony  that  the  fraudulent  tin  ballot-box  was 
used;  that  the  judges  of  election  were  all  Democrats  ;  that  there  was 
a  good  turn  out,  the  total  vote  polled  being  395. 

It  was  at  this  township  the  contestant  went  to  take  testimony  and 
was  prevented  from  so  doing  by  the  friends  of  the  contestee. 

The  nearest  approximation  to  proof  of  how  the  vote  stood,  in  that 
township,  is  found  in  the  testimony  of  E.  D.  Sanders  (page  200)  where 
he  says  that  the  vote  of  the  Republicans  is  about  6  to  1  of  the  Demo- 
crats, and  when  interrogated,  as  to Crawfordsville,  he  says  that  would 
not  be  a  fair  proportion  for  that  township,  nor  does  he  say  what  would  be. 

The  return  from  the  township  shows  the  following  : 

Gate 88 

Featherston 147 

Barrett 160 

Total 395 

It  does  not  appear  from  the  record  who  Barrett  is,  or  what  party  put 
him  in  nomination,  or  whether  there  is  any  such  man. 

Had  the  contestant  made  proof  of  any  vote  received,  as  was  done  in 
Scanlan  and  Cat  Island,  we  would  set  aside  the  return  and  give  him 
the  vote  i)roven ;  but  he  has  not  done  so.  If  we  should  set  aside  the 
return  it  would  have  to  be  done  on  suspicion,  or  from  the  fact  that  re- 
turns should  not  be  regarded  where  the  use  of  a  fraudulent  box  is 
shown,  and  that  the  judges  of  election  were  all  of  the  Democratic  party 
in  a  strong  Republican  township.  To  set  aside  the  return  in  a  township 
where  the  contestant  has  a  majority,  but  not  as  great  as  he  claims  it 
should  be,  in  a  case  where  he  was  prevented  from  making  full  proof  of 
his  vote,  would  be  to  reward  the  fraud  complained  of,  and  punish  him  for 
undertaking  to  expose  it.  Where  there  is  no  proof  upon  which  we 
would  be  justified  in  setting  aside  the  return,  we  therefore  let  it  stand. 
As  both  parties  have  had  credit  for  this  vote,  it  having  been  certified 
to  the  secretary  of  state,  it  makes  no  change  in  the  majority. 


FEATHEESTON    VS.    GATE.  109 

No  election  at  Idlewild  precinct. 

George  Heudley,  in  speaking  of  tbe  failure  to  bold  an  election  at  Idle- 
wild  precinct,  testifies : 

Q.  Is  there  any  otber  voting  precinct  in  your  township  ? — A.  Yes,  sir;  Idlewild. 

Q.  Do  you  know  whether  there  was  aay  election  held  at  Idlewild? — A.  There  was 
not. 

Q.  Do  you  know  whether  the  judges  of  election  at  that  point  were  all  Democrats  or 
all  Republicans? — A.  They  were  all  Democrats. 

Q.  What  was  the  conclusion  of  the  people  of  that  precinct  was  the  reason  for  not 
opening  the  polls  ? — A.  The  conclusion  was  because  that  all  of  the  people  there,  the 
voting  citizens,  was  going  to  vote  the  straight  Republican  ticket,  and  in  order  to  pre- 
vent them  from  voting,  it  was  supposed  they  wouldn't  open  the  polls  that  day. 

Q.  Did  any  of  the  voters  come  down  to  your  precinct  to  vote? — A.  Yes,  sir;  about 
12  or  14. 

Q.  Did  they  tell  them  that  the  polls  were  not  open  at  Idlewild? — A.  Yes,  sir;  they 
did. 

^.  And  thought  that  they  conld  vote  there  because  it  was  in  the  same  township  ? — 
A.  Yes,  sir. 

Q.  Were  they  allowed  to  vote? — A.  Well,  I  couldn't  really  say  that  they  wasn't  al- 
lowed, because  I  met  them  as  I  were  coming  away,  but  they  told  me  that  they  was 
objected  to  voting. 

Q,  You  d'>u't  know  whether  they  voted  then  or  nc?? — A.  I  know  that  they  didn't 
vote  ;  they  said  they  was  objected  of  voting  by  some  one  ;  I  don't  know  who. 

Q.  How  many  men  told  you  they  were  at  the  polls  that  day  for  the  j)urpose  of 
voting  the  Eepublicau  ticket? — A.  About  26. 

Q.  Can  you  furnish  their  names? — A.  I  can. 

And  further  this  deponent  sayeth  not.     (Printed  record,  page  188-9). 

No  polls  opened  in  Ferguson. 

Thompson  Foster  (col.),  a  witness  on  behalf  of  the  contestant,  being  first  duly 
sworn,  testified  as  follows : 

Q.  What  is  you  name  ?— A.  Thompson  Foster. 

Q.  Where  do  you  live? — A.  Crittenden  County,  Arkansas. 

Q.  How  long  have  you  lived  there  ? — A.  Ever  since  1870. 

Q.  How  old  are  you?— A.  28. 

Q.  What  is  yonr  occupation  ? — A.  Farmer. 

Q.  What  is  your  usual  voting  precinct? — A.  Ferguson  precinct. 

Q.  Was  there  any  election  held  there  on  the  sixth  day  of  November  last  ? — A.  No, 
sir. 

Q.  Were  you  at  the  polls  to  vote  ? — A.  Yes,  sir. 

Q.  Were  the  judges  of  election  who  served  at  the  State  election  all  Democrats  or 
Republicans  ? — A.  They  all  was  supposed  to  be  Democrats. 

Q.  They  didn't  come  about  the  polls  to  open  the  polls  during  the  day  ? — A.  No,  sir  ; 
not  to  my  understanding,  or  not  to  my  knowing  ;  never  saw  any  of  them. 

Q.  What  was  the  Republican  majority  in  your  precinct  generally  ? — A.  About  120 
or  125. 

Q.  What  proportion  of  them  were  at  the  polls  during  that  day  for  the  purpose  of 
voting  ? — A.  Off  and  on  all  day,  about  a  hundred  to  my  knowing. 

Q.  They  came  there  for  the  purpose  of  voting  ? — A.  Yes,  sir. 

Q.  And  the  polls  not  being  open  they  couldn't  vote  ? — A.  Yes,  sir. 

»  »  •»  «  »         '         »  • 

Q.  About  what  is  the  Democratic  vote  of  your  township?— A.  There  is  about  six  or 
eight. 
Q.  Were  they  out  that  day  to  vote?— A.  No,  sir.    (Printed  record,  page  205.) 

Furgeson. 

T.  J.  Jonrs  (col.),  a  witness  on  behalf  of  tbe  contestant,  being  first 
duly  sworn,  testified  as  follows : 

Q.  Where  do  you  live? — A.  I  live  in  Proctor  Township. 

Q.  Whereabouts? — A.  I  live  there  at  Ferguson's. 

C.  What  State  and  county  ? — A.  Crittenden  County,  Arkansas. 

Q.  How  long  have  you  lived  there  ? — A.  About  21  years. 


110  FEATHERSTON    VS.    GATE. 

Q.  HovT  old  are  ;vou? — A.  About  29. 

Q.  Wliat  is  your  biisiuess? — A.  Faruiing. 

Q.  Where  is  your  usual  voting  place? — A.  Ferguson's,  though  I  vote  at  Jones's  oa 
the  national  election — Presidential  election  ;  my  usual  voting  place  is  at  Ferguson's. 

Q.  15ut  the  Presidential  election  you  did  vote  at  Jones's? — A.  Yes,  sir. 

Q.  Were  you  down  at  Ferguson's  during  the  day? — A.  Yes,  sir;  I  was  at  Fergu- 
sons during  the  day  and  at  Jones's ;  was  at  Ferguson's  lirst. 

Q.  How  long  were  you  at  Ferguson  ? — A.  About  two  hours,  I  reckon. 

Q.  Were  there  a  good  many  people  there  ? — A.  Yes,  sir. 

Q.  Anxious  to  vote  ? — A.  Yes,  sir;  they  were  strung  all  around  there;  seemed  to  be. 

Q.  About  how  many  came  to  the  polls  to  vote  at  Ferguson  while  you  were  there? — 
A.  During  the  day,  about  a  hundred. 

Q.  Did  you  know  all  of  the  people? — A.  No,  sir;  I  didn't  know  all  of  them  ;  I  knew 
one  part  of  them. 

Q.  Was  that  the  larger  part  of  them? — A.  Yes,  sir;  that's  a  large  body  of  them. 

Q.  What  were  their  politics ;  were  they  Eepublicans  or  Democrats  ? — A.  They  all 
was  Republicans. 

Q.  They  all  turned  out  to  vote  ? — A.  Yes,  sir;  all  but  about  a  few  white  men  was  in 
the  crowd;  they  was  Democrats. 

Q.  How  many  Democrats  do  you  imagine  was  in  the  crowd? — A.  I  didn't  see  any 
of  those  white  men  at  the  polls,  but  in  that  precinct  four  or  five  of  them  was  Demo- 
crats. All  the  judges,  pretty  well,  live  there  in  that  voting  precinct  are  Democrats, 
but  I  didn't  see  them  all  during  that  day. 

Q.  The  voters  that  you  saw  at  the  polls  then  were  all  Republicans? — A.  Yes,  sir; 
all  Republicans. 

Q.  You  think  you  saw  about  a  hundred  there  ? — A.  About  a  hundred. 

Q.  You  been  voting  at  that  precinct  for  several  years? — A.  Yes,  sir. 
Q.  The  Republican  vote  there  is  usually  how  many  ?— A.  Well,  it's  about  120. 
Q.  W^ere  the  judges  of  election  for  that  township  Democrats  or  Republicans? — A 
They  was  all  Democrats  pretty  well,  I  think. 

Q.  Did  you  hear  any  reason  given  for  the  judges  not  opening  the  polls  on  that  day?— 
A.  Didn't  hear  no  reason  at  all;  I  did  at  one  time,  but  I  didn't  pay  much  attention 
to  that.  Some  says  that  Col.  Armstrong  wasn't  there  the  reason  the  polls  wasn't 
opened,  and  I  understand  that  Col.  Armstrong  were  in  town — Memphis  here — though 
he  had  been  notitied  that  he  was  judge  of  that  election. 

Q.  Did  he  serve  as  judge  in  the  State  election  ?— A.  In  the  county  election  he  did, 
but  not  in  the  national  election — Presidential  election. 

Q.  If  the  polls  had  been  open  there  all  day  long  as  they  usually  were  and  ought  to 
hiive  been  on  the  day  of  election,  from  what  you  know  of  your  21  years'  residence 
there,  and  of  the  citizens  around,  what  would  have  been  the  majority  for  Harrison 
and  Featherston  in  that  district?— A.  About  115.     (Printed  record,  page 210.) 

iS.  E.  Rushiug  (col.),  a  witness  on  behalf  of  t  he  contestant,  being  first 
duly  sworn,  deposed  as  follows: 

Q.  What  is  your  name? — A.  S.  R.  Rushing. 

Q.  What  is  your  age?— A.  About  38. 

Q.  Where  do  you  live? — A.  Jones's. 

Q.  What  county  ? — A.  Crittenden. 

Q.  What  State? — A.  Arkansas. 

Q.  Did  you  vote  at  the  last  national  election?— A.  No,  sir;  wouldn't  let  me  vote. 

Q.  How  did  they  keep  you  from  voting? — A.  Said  I  didn't  live  in  that  precinct. 

Q.  Your  vote  was  challenged,  thea? — A.  Yes,  sir. 

Q.  Was  the  election  at  your  regular  voting  place? — A.  Twasn't  held. 

Q.  Why  was  it  not  held  ? — A.  I  don't  know,  sir ;  didn't  hold  it  there. 

Q.  Do  yon  know  whether  the  majority  of  voters  in  your  precient — how  they  stood 
— whether  they  were  usually  Democrats  or  Republicans? — A.  All  of  them  was  Repub- 
licans but  about  six. 

Q.  You  say  there  was  no  election  held  there  at  all? — A.  No,  sir. 

Q.  Was  the  State  election  held  there? — A.  Yes,  sir. 

Q.  No  national  election? — A.  No,  sir. 

Q.  Were  the  judges  Democrats  or  Republicans? — A.  All  of  them  were  Democrats. 

Q.  You  refer  to  the  State  election  now  ? — A.  Yes,  sir. 

Q.  What  is  the  usual  number  of  votes  polled  at  that  township  precinct  ?^A.  About 
130. 

Q.  What  proportion  of  them  are  Eepublicans  ? — A.  All  of  them  but  about  five  or 
six. 

Q.  Were  most  of  them  at  the  jjolls  that  day  and  anxious  to  vote  ? — A.  They  told  me 
they  were  there  all  day.  I  was  there  trying  to  get  the  election  held,  and  never  got 
it.    I  was  supervisor,  and  after  I  was  notified  that  I  was  supervisor  I  went  to  the 


FEATHERSTON    VS.    GATE.  Ill 

polls  in  order  to  know  the  reason  or  see  that  there  wa^an  election  held  there.  I  was 
appointed  by  the  proper  authorities,  and  I  went  there  for  the  purpose  of  having  some 
kind  of  an  election.     No  judges  came,  and  there  was  no  election  held. 

Q.  When  you  got  to  Ferguson's  and  found  you  couldn't  vote — found  that  the  polls 
were  not  open — you  went  to  Jones's  for  the  purpose  of  voting  ? — A,  Yes,  sir. 

Q.  And  there  you  were  denied  the  right  to  vote? — A.  Yes,  sjr;  none  of  us  voted 
at  all. 

Q.  Were  there  any  poll-books  or  a  ballot-box  furnished  to  any  one  that  you  know 
of  in  Ferguson  precinct  ? — A.  There  was  a  ballot-box  sent  to  me  at  1  o'clock  the  same 
day  ;  it  was  about  1  o'clock.  I  was  in  my  store  ;  had  a  clock  in  there,  and  the  bal- 
lot-box come  there ;  the  fellow  came ;  he  looked  like  he  came  in  haste.  He  come 
there  with  the  ballot-box  and  poll-books  and  everything;  says,  "  I  want  you  to  hold 
election  at  Ferguson's;"  I  says,  "I  ain't  the  judges."  "  Well,"  he  says,  "  you  are 
appointed  as  supervisor."  I  says,  "I  have  no  notice  of  that."  "Well,"  he  say-,  "it's 
in  this  thing."  And  I  took  it  and  looked  in  there  and  I  saw  I  was  appointed  supervisor 
at  Ferguson's  and  Jones's.  I  thought  that  was  a  mere  mistake:  I  dou't  know  how 
I  come  at  two  places,  but  then  my  name  was  on  at  Ferguson's  and  Jones's,  and  I 
thought  it  was  very  necessary  to  vote  for  Harrison  as  President,  and  I  wanted  to  vote 
the  whole  ticket,  especially  Featherstone ;  wanted  to  vote  the  whole  ticket.  We 
voted  the  State  and  county  ticket  solid  Republican.  There  wan't  but  six  men  went 
against  us  at  that  precinct,  and  we  voted  128  or  30  there.  The  reason  I  didn't  hold 
the  election  was  because  I  sent  it  to  the  judges  of  the  election  ;  I  thought  they  were 
elected  for  a  certain  term  under  proper  authorities ;  I  sent  it  to  them  and  ordered 
them  to  open  the  polls  immediately,  that  I  was  going  to  hold  an  election.  There  was 
none  held  at  all.  There  was  people  coming  there  all  day  ;  I  reckon  there  was  more 
than  25  or  30.  I  reckon  there  was  more  than  them  ;  of  course  I  counted  that  many 
citizens  of  the  county,  and  there  was  citizens  of  the  United  States,  and  we  couldn't 
vote. 

Q.  If  the  polls  had  been  opened  there  early  in  the  morning,  according  to  law,  what 
would  have  been  the  majority  given  to  Harrison  and  to  Featherstou  ? — A.  They'd 
have  got  about  125  votes  apiece. 

Q.  What  would  have  been  the  Democratic  vote  there  ? — A.  About  six  or  eight. 
(Printed  record,  206-7.) 

The  townships  of  Idlewild  and  Furgeson  may  be  treated  together. 
The  proof  shows  that  the  judges  of  election  at  Idlewild  were  Demo- 
crats ;  that  they  failed  to  open  the  polls,  and  that  the  Republican  ma- 
jority in  the  precinct  usually  ranged  from  100  to  125.  It  also  shows 
that  at  Furgeson  the  judges  of  election  were  all  Democrats;  that  they 
failed  to  open  the  polls,  and  that  the  Republican  majority  in  the  pre- 
cinct is  115 ;  i.  e.,  this  had  been  the  usual  Republican  majority. 

We  know  of  no  rule  by  which  these  votes  can  be  counted  under  the 
state  of  proof  as  to  these  townships.  The  action  of  the  Democratic 
judges  in  these  precincts  no  doubt  deprived  the  contestant  of  some- 
where about  250  majority :  but  it  is  no  worse,  in  fact  not  nearly  so  bad, 
as  the  conduct  of  the  judges  of  election  in  Scanlan,  Cat  Island,  and 
Crawfordville  in  the  use  and  manipulation  of  a  fraudulent  ballot-box. 

It  is  nearer  on  a  level  with  the  action  of  the  county  court  clerk  already 
referred  to,  who  willfully  failed  to  certify  the  vote  of  seven  townships 
to  the  secretary  of  state.  Nor  is  it  quite  as  bad  as  the  action  of  the 
county  judge  who  appointed  such  creatures  of  a  conspiracy  as  judges 
of  election.  But  it  does  show  that  the  conspiracy  formed  in  July,  1888, 
to  control  the  county  of  Crittenden  politically,  with  less  than  one-sixth 
of  the  legal  voters,  was  still  alive  and  active  in  November  in  depriving 
the  Republicans  of  their  votes. 

What  made  the  Bepublicans  poll  a  full  vote  at  the  November  election. 

Jordan  Yeates,  in  speaking  of  the  vote  polled  at  the  Congressional 
election,  testified : 

Q.  What  made  them  stick  closer  together  than  usual? — A.  Upon  the  action  of  the 
Democrats  with  the  Winchesters ;  that's  just  exactly  why  we  stack  so  close,  seeing 
how  cruel  those  men,  undertakinic  to  take  the  advantage  of  men,  because  they  wanted 
them  out  of  office. 


112  FEATHERSTON    VS.    GATE. 

Q.  Do  you  think  they  stuck  as  closely  together  in  the  national  election? — A.  Yes, 
sir;  they  stuck  just  as  close  in  the  national  election. 

Q.  You  think  they  were  specially  anxious  to  see  a  Republican  President  elected  ? — 
A.  Yes,  sir;  they  had  it  on  their  minds  if  they  carried  that  election  they  probably 
would  be  able  to  obtain  justice. 

Q.  The  Republican  vote,  then,  you  are  satisfied,  in  Crittenden  County,  in  the  two 
last  elections  has  been  more  solid  than  it  has  been  for  years  ? — A.  More  solid  than  it 
has  been  in  20  years. 

Q.  Repeat  in  as  short  a  way  as  you  can,  your  reason  for  thinking  that  t — A.  My 
reason  for  thinking  it  was  just  this:  It  was  just  simply  for  the  way  that  the  Demo- 
crats did.  They  taken,  for  the  sake  of  getting  in  possession  of  the  office,  they  taken 
their  guns,  raised  np  an  excuse  against  our  leading  men  that  we  had  there,  Dave 
Ferguson  and  Dan  Louis ;  they  felt  that  was  the  only  way  they  had  to  come  in  power, 
was  to  get  up  some  excuse  against  tliose  men  to  drive  them  away  and  all  their  fol- 
lowers; that  was  our  opinion;  that  caused  us  to  stick  together  so  close ;  that  those 
men  did  that  for  the  purpose  of  frightening  the  election  so  as  to  frighten  the  others 
so  they  wouldn't  try  to  arrest  their  actions  at  all,  and  we  were  determined  to  show 
them  that  it  was  allowed  to  us  to  vote  and  we  intended  to  execute  that  right,  and 
that  was  the  feeling  with  the  people  generally,  that  they  all  turned  out  and  voted 
when  they  had  a  chance,  and  all  voted  in  the  national  election  the  straight  Republi- 
can ticket.     (Printed  record,  page  194.) 

William  Royster,  in  speaking  on  the  same  subject,  testified : 

Q.  Why  did  the  colored  members  of  the  Republican  party  poll  such  a  large  vote 
and  stick  so  close  in  the  national  election  ? — A.  Because  the  men  that  they  had  had 
there  for  leaders  I  suppose  they  had  a  great  deal  of  confidence  in  was  hurried  away, 
and  they  made  the  brag  when  they  got  up  the  Winchesti  r  crowd  that  they  had  the 
snakes  [tail]  oft' in  the  morning  and  the  head  would  die  by  sun-down;  and  that  was 
the  motto  what  drew  the  people  together;  and  they  said  if  they  had  cut  the  snake's 
head  oft'  they  would  come  nearer  together  than  they  were  before. 

Q.  What  did  they  expect  from  the  Republican  party  if  it  got  into  power  ? — A.  I 
.don't  know,  sir  ;  they  expected  to  get  some  civil  law  in  the  country  ;  there  is  no  law; 
because  we  expected  to  get  some  relief  from  the  condition  of  alfairs  that  prevail ;  to 
get  some  relief  from  the  condition  of  aft'airs  that  prevail  now. 

And  further  this  deponent  saith  not,     (Printed  record,  page  191.) 

J.  L.  Fleming,  in  speaking  on  this  subject,  testified : 

Q.  Do  you  know  whether  the  colored  people  of  Crittenden  County  vote  the  Repub- 
lican or  Democratic  ticket  ? — A.  The  colored  people  of  that  county  vote  the  Repub- 
lican ticket,  and  they  voted  more  solid  last  year  than  they  ever  did. 

Q.  Why  I — A.  Because  they  understood  that  the  action  of  that  Winchester  crowd 
wa*)  for  political  purposes,  and  they  intended  to  vote  solid  Republican — more  than 
they  ever  had  done  before — because  they  saw  the  advantages  that  the  whites  tried 
to  take  of  the  colored  Republicans. 

Q.  What  were  those  advantages? — A.  By  driving  the  leading  Republicans  out  of 
the  county  they  thought  that  the  colored  people  would  have  no  leaders. 

Q.  These  leaders  that  you  speak  of,  did  they,  in  their  advice  to  the  colored  people, 
advise  assassination,  or  incendiarism,  or  tailing  advantage  of  anybody  t — A.  No,  sir ; 
we  advocated  a  fusion  ticket  in  that  county  politics.     (Printed  record,  page  196.) 

E.  D.  Sanders,  in  speaking  on  this  subject,  testified: 

Q.  How  was  it  with  regard  to  the  Republican  vote;  was  it  at  all  divided? — A. 
Not  at  all,  sir. 

Q.  Was  there  any  reason  why  it  should  have  been  nearer  a  unit  than  it  had  been 
in  years  before  1 — A.  Yes,  sir  ;  thei-e  was,  from  the  simple  fact  those  men  calling  them- 
selves the  Democratic  nominees  had  nominated  over  the  Rei)ublican  there,  and 
brought  out  Winchester  rifles ;  made  all  kind  of  threats  that  they  should  not  even 
nominate  a  ticket,  and  this  brought  them  more  closely  together;  I  know  it  to  be  a 
fact  in  the  last  election  we  had  there.  For  several  years  the  Republican  ticket  has 
been  considerably  divided,  and  that  was  done  through  the  farmer  who  was  controlling 
labor.  Some  of  them,  you  know,  would  have  a  liking  for  the  man  they  was  working 
with,  and  would  vote  for  him,  but  on  this  occasion  they  had  no  friends  among  the 
party  at  all,  and  therefore  they  consolidated  and  voted  solidly. 

Q.  What  was  your  experience  as  to  the  reliability  of  the  nigger  standing  up  to  his 
friends  and  voting  his  tickets  in  the  State  election  ;  what  was  yonr  experience  in  this 
election  f — A.  Well,  I  think  they  stood  right  up  and  turu<d  out  fully  and  voted  for 
their  friends ;  our  precinct  polled  a  heavier  vote  in  the  State  and  in  the  last  election 
than  it  has  there  for  several  years. 


FEATHERSTON   VS.   GATE,  113 

Q.  Theu  you  think  the  reason  for  it  was  to  resent  the  nnjust  treatment  which  they 
considered  they  had  received  at  the  hands  of  the  so-called  Democratic  party  manipu- 
lated by  the  Winchester  rifle  crowd  ?— A.  I  do  :  I'm  satisfied  of  it.  (Printed  record, 
page  199.) 

The  following  testimony  gives  a  detailed  history  of  the  eflforts  of  the 
contestant  to  take  proof  in  Crittenden  County,  and  that  he  was  pre- 
vented from  so  doing  by  the  partisan  friends  of  contestee. 

W.  B.  Eldridge,  being  first  duly  sworn,  testified  as  follows : 

Q.  What  is  your  name,  place  of  residence,  age,  and  occupation  ? — A.  My  name  is 
W.  B.  Eldridge ;  28  years  of  age ;  occupation,  lawyer,  and  residence,  Memphis,  Tenn. 

Q.  Are  you  a  Republican  or  Democrat? — A,  I  have  never  voted  anything,  and 
never  will  vote  anything  but  the  Democratic  ticket. 

Q.  Were  you  one  of  the  attorneys  for  L.  P.  Featherston,  and  did  you  go  to  Critten- 
den County  recently  to  take  proof  for  him  in  the  contest  between  him  and  Gate? — A. 
I  was  one  of  his  attorneys  and  did  go  for  that  purpose. 

Q.  Mr.  Eldridge,  what  sort  of  reception  did  you  meet  with  from  the  i)eople  over 
there  ? — A.  I  was  not  received  at  all. 

Q.  What  do  you  mean  by  saying  you  was  not  received  at  all ;  and  please  ^ate 
how  you  were  treated  by  the  people  over  there;  state  fully. — A.  The  people  seemed 
displeased  at  my  presence  there  as  the  lawyer  of  Mr.  Featherston,  and  I  was  not  in- 
vited in  their  places  of  business  or  residences,  or  in  any  way  was  I  shown  that  com- 
mon politeness  which  the  citizens  of  a  town  are  supposed  to  extend  to  a  stranger  who 
is  there  on  legitimate  busiuess. 

Q.  What  town  was  this?— A.  Grawfordsville,  Crittenden  County,  Arkansas. 

Q.  You  say  you  were  not  invited  into  any  place  of  business  or  any  house;  what  was 
the  condition  of  the  weather  at  this  time,  and  did  you  suffer  any  inconvenience  on 
account  of  this  inhospitality  ? — A.  My  associate  counsel,  Jlr.  Henry  F.  Walsh,  and 
myself  were  together ;  we  remained  there  about  two  days  and  a  night.  The  first  day 
it  was  bitter  cold,  which  we  spent  in  a  saloon  with  the  doors  open  and  no  place  to  sit ; 
the  second  day  was  spent  under  the  cover  of  the  porches  of  the  stores.  We  did  this 
because  wo  had  nowhere  else  to  go,  and  no  one  invited  us  in  out  of  the  cold  and  weather. 
Wp  had  some  difficulty  in  getting  anything  to  eat,  which  we  finally  secured  from  ne- 
groes, who  allowed  us  to  eat  it  in  an  open  room  adjoining  where  it  was  cooked.  We 
came  very  near  freezing  here.  This  was  a  negro  eating-house ;  such  a  place  I  was 
never  in  before.  The  night  coming  on,  we  looked  In  vain  for  a  place  to  rest,  and  I 
thought  we  would  have  to  pass  it  in  the  open  street.  We  finally  induced  a  negro  by 
the  name  of  Logan  to  allow  Mr.  Walsh  and  myseK  to  pass  the  night  on  a  lounge  in  a 
room  of  his  house,  which  was  about  half  a  mile  from  town.  We  received  the  only 
courtesy  from  this  negro  and  his  wife  that  we  had  there  at  all. 

Q.  Mr.  Eldridge,  in  allof  your  experience  as  a  lawyer,  have  you  ever  received  such 
impolite  treatment  as  you  experienced  during  >onr  trip  to  Arkansas  on  this  occasion 
that  you  speak  of? — A.  I  never  did,  and  hope  it  never  will  be  repeated. 

Q.  Have  you  ever,  in  your  experience  as  a  lawyer,  or  in  any  other  capacity,  in 
traveling  through  the  South,  been  forced  to  take  your  meals  and  lodging  with  ne- 
groes?— A.  I  never  have;  I  was  born  and  raised  in  the  South,  and  have  never  met 
with  Southern  people  who  did  not  have  hospitality  and  common  politeness  before ; 
that  was  the  first  day's  experience  ;  here's  the  second  day's  experience  coming  on. 

Q.  You  speak  of  the  second  day ;  what  happened  on  that  day  ? — A.  We  awoke  sec- 
ond morning  and  found  i;;  raining;  walking  through  the  mud  back  to  town  we  got 
our  breakfast  at  the  same  place ;  and  standing  out  on  the  porches  of  the  stores  we 
had  again  to  endure  the  inclemency  of  the  weather. 

Q.  What  sort  of  treatment  did  Mr.  Featherston  receive? — A.  Mr.  Featherstone  ate 
with  us  at  this  negro  eating-house  to  which  I  have  I'eferred ;  I  do  not  know  where  ho 
passed  the  night,  as  he  said  he  had  to  go  to  tHe  country  to  sleep  anywhere.  The  peo- 
ple were  very  bitterly  opposed  to  Mr.  Featherston's  making  an  investigation  of  the 
election,  and  we  hourly  anticipated  that  we  would  have  trouble. 

Q.  Did  you  hear  any  threats  made?— A.  Yes,  sir;  I  heard  Richard  Gheaton  and 
Dr.  Haden  make  threats. 

Q.  What  did  they  say  ?— A.  I  heard  them  say  that  they  did  not  intend  to  submit 
to  an  investigation  of  the  election,  and  at  one  time  I  thought  that  Mr.  Featherston 
would  become  involved  in  a  serious  difficulty  with  a  man  by  the  name  of  Dr.  Haden, 
who  seemed  very  much  excited  over  our  presence  on  the  ground.  I  went  up  to  the 
crowd  where  Mr!  Featherston  was  surrounded  by  Dr.  Hayden  and  his  frieads  and  car- 
ried him  off  to  prevent  a  difficulty  which  I  feared. 

Q.  Did  any  of  the  men  about  the  saloon  seem  to  be  excited  from  drink? — ^A.  WeU, 
pow,  I  don't  remember  whether  any  of  them  seemed  to  be  excited  or  not. 

Q.  Were  they  drinking? — A.  Oh,  yes. 

H.  Mis.  137 8 


114  FEATHER8T0N    VS.    CATE. 

Q.  They  "were  all  drinking,  were  they  ? — A.  Everybody  was  drinking  pretty  much. 

Q.  Did  yon  all  get  warning  from  anybody  over  there  ? — A.  I  don't  know  anything 
about  that. 

Q.  Did  you  all  go  over  with  Mr.  Berry,  the  lawyer  of  Mr.  Gate,  and  did  he  say  any- 
thing about  acting  as  notary  public  f — A.  He  said  he  would  act  as  notary  liublic, 
which  iitterwards  be  refused  to  do. 

Q.  Did  yon  all  take  any  depositions  there  ? — A.  We  did  not. 

Q.  vVhat  was  the  reason  for  not  taking  the  depositions  ? — A.  Ho  could  not  get  a 
notary  public,  there  was  a  magistrate  there,  but  he  also  refused  to  act,  and  Mr.  Berry 
now  refused,  contrary  to  his  promise  and  our  expectations. 

Q.  Now,  Mr.  Eldridge,  please  state  from  your  information  and  from  what  you  act- 
ually observed  in  the  conduct  and  the  general  feeling  among  the  white  people  of 
Crawfordsville,  whether  there  was  actually  danger  in  attempting  to  take  depositions 
for  Featherston  ? — A.  I  think  there  was  danger  of  personal  altercations  which  might 
have  resulted  disastrously.  The  people  were  displeased  with  our  presence  there,  and 
I  saw  that  if  we  took  deijositions  at  all  we  would  have  to  do  it  contrary  to  their 
wishes  or  assistance,  besides  that,  we  could  not  get  a  notary  public,  and  that  made 
the  taking  of  depositions  of  course  impossible.     (Printed  record,  pages  226-227.) 

J.  W.  Wymme,  on  this  subject,  says : 

Q.  Do  you  think  you  would  give  this  testimony  that  you  are  now  giving  if  this  in- 
vestigation was  held  in  Crittenden  County  ? — A.  I  rather  think  I  wouldn't,  sir. 

Q.  Why  would  you  not? — A.  I'd  be  feared. 

Q.  Afraid  of  what  ? — A.  Them  fellows  might  kill  me. 

Q.  What  fellows  ? — A.  Those  fellows  that  got  those  guns — that  military  corai)any 
over  there. 

Q.  Do  you  think  that  any  considerable  number  of  voters  would  have  given  their 
testimony  in  this  case  if  the  investigation  had  been  held  at  Crawfordsville  ? — A.  No, 
sir;  they'd  have  been  afraid  to  have  done  so.     (Printed  record,  page  204.) 

E.  Y.  Logan,  on  this  subject,  testified: 

Q.  Do  you  remember  advising  Mr.  Featherston  that  it  would  be  best  for  him  not 
to  take  testimony  thei'e  in  Crawfordsville  at  all,  and  to  let  the  matter  alone  there? — 
A.  Yes,  sir. 

Q.  What  was  your  reason  for  that  advice?— A.  Well,  I  knew  one  thing,  that  the 
people  was  afraid  to  testify. 

Q.  Why  were  they  afraid  to  testify? — ^A.  Well,  from  the  general  appearance  of 
things  they  didn't  feel  free  to  testify. 

Q.  Have  you  heard  any  threats  made  there  by  the  people  of  Crawfordsville  in  re- 
gard to  people  testifying? — A.  No,  sir;  I  didn't  hear  any  threats  made  there  myself, 
that  is,  from  what  they  said  ;  others  told  me. 

Q,  You  heard  that  there  were  threats  made,  you  mean? — A.  Yes,  sir. 

Q.  Do  you  know  the  general  feeling  of  the  people  of  Crawfordsville  towards  Mr. 
Featherston? — A.  No,  sir;  I  don't  really  know. 

Q.  Do  you  think  that  Mr.  Featherston  could  have  satisfactorily  carried  on  an  ex- 
amination there  in  this  Congressional  contest ? — A.  No,  sir;  I  don't  think  he  could. 
(Printed  record,  page  219.) 

E.  D.  Hilderbrand  (white),  a  witness  on  behalf  of  the  contestant, 
being-  first  duly  sworn,  testified  as  follows : 

Q.  What  is  your  name  ?— A.  E.  H.  Hilderbrand. 

Q.  Where  do  you  live? — A.  In  Crittenden  County,  near  Crawfordsville,  Ark. 

Q.  How  long  have  you  lived  there  ? — A.  Seven  years. 

Q.  How  old  are  you  ? — A.  53. 

Q.  What  is  your  business  ? — ^A.  Farmer. 

Q.  Have  you  ever  held  any  oiificial  position  in  that  State  or  county  ?— A.  Never 
have. 

Q.  Do  you  remember  about  three  weeks  ago  when  the  lawyers  of  Mr.  Featherston, 
Mr.  Walsh  and  Mr.  Eldridge,  came  to  Crawfordsville  with  Mr.  Featherston  for  the 
purpose  of  taking  this  testimony  we  are  now  taking ;  do  you  remember  that  time  ? — 
A.  Yes,  sir. 

Q.  Was  that  testimony  taken  at  that  time? — A.  It  was  not. 

Q.  Why  not  ? — A.  Well,  owing  to  the  feeling  of  the  people  and  the  excitement  that 
wa.8  gotten  up  the  appearance  of  Mr.  Featherston  and  his  coming  there  created 
quite  a  commotion,  when  his  business  was  known  especially  ;  a  good  many  were  right 
smartly  excited,  but  I  never  had  heard  anybody  express  themselves  as  to  whether 
they  was  or  was  not ;  I  saw  there  was  a  good  deal  of  feeling. 

Q.  Do  you  mean  to  say  the  people  felt  uneasy  and  angry  on  account  of  the  appear- 
ance of  Mr.  Featherston  and  his  lawyei-s  on  the  ground  for  that  purpose?— A.  I 
judge  80. 


I 


FEATHEKSTON   VS.    GATE.  ^         115 

Q.  Was  their  feeling  opposed  to  Mr.  Featherston? — A.  Yes,  sir  ;  a  good  deal  of  it ; 
there  was  a  good  deal  feeling  among  all  parties,  those  for  and  against,  but  that 
showed  itself  the  most  was  those  that  were  opposed  to  him. 

Q.  Do  yon  know  whether  Mr.  Featherston  and  his  lawyers  were  received  there 
with  courtesy  or  not  ? — A.  I  do  not  know  ;  I  weut  up  there  that  morning  from  home  ; 
I  didn't  have  any  idea  of  seeing  Mr.  Featherston ;  he  was  about  the  third  man  I  saw 
after  I  got  there;  I  was  surprised  at  his  coming;  he  had  been  there  an  hour  or  two 
when  I  saw  him;  as  to  how  he  was  received,  I  coiildn't  tell  you. 

Q.  You  say  that  the  people  of  Crawfordsville  were  very  much  opposed  to  Mr. 
Featherston  taking  his  testimony  there,  you  think,  from  the  general  manner  of  the 
liopulatiou  there  ? — A,  That  would  be  my  decision. 

Q.  Do  you  think  that  Mr.  Featherston  could  have  induced  witnesses  to  have  tes- 
tified at  Crawfordsville  as  to  his  election  with  any  degree  of  satisfaction  f— A.  No, 
sir;  he  might  have  gotten  a  few  tbat  had  the  nerve,  the  majority  of  them  were 
afraid ;  the  majority  of  voters  that  voted  lor  him  would  not  have  weut  there. 

Q.  You  say  you  do  not  think  he  could  have  procured  witnesses  to  testify  for  him. 
Why  ? — A.  Because  they  were  afraid. 

Q.  What  were  they  afraid  of? — A.  Well,  sir;  we  are  blessed  with  a  military  cora- 
Iiauy  in  our  county,  and  those  people  muster  frequently  aud  carrj'  guns,  and  they 
show  a  kind  of  a  disposition  that  things  must  go  the  way  they  say.  That's  what  I 
judge.  Most  of  the  people  have  never  had  any  experience  in  fire-arms,  especially  when 
they  have  them  pointed  at  them  ;  are  a  little  afraid  of  these  sorts  Ot  things. 

Q.  You  say  you  have  a  military  organization  in  your  county  ? — A.  I  reckon  it's 
regularly  organized ;  I  don't  know  ;  they  meet  and  muster  regularly,  and  have  their 
uniforms. 

»  «  *  •  •  •  * 

Q.  Did  yon  advise  Mr.  Featherston  to  continue  that  investigation  or  leave  there  ? — 
A.  My  advice  was  to  leave  there.  I  urged  the  matter  on  him;  took  him  home  with 
me  especially  for  that  purpose. 

Q.  Why  did  you  advise  him  that  ? — A.  Because  I  was  better  acquainted  with  the 
people  than  he  was,  and  I  could  see  from  the  feeling  and  the  interest  that  seemed  to 
be  gathering  around  that  it  was  better  for  him  to  leave  there.  I  was  satisfied  of  one 
thing — that  if  he  pei'sisted  in  the  course  he  had  started  out  on,  there  would  be  a  dis- 
turbance. 

«  -^  •  »  •  «  * 

Q.  Did  there  seem  to  be  much  drinking  among  the  opponents  of  Mr.  Featherston 
the  day  he  was  there  with  his  attorneys? — A.  There  was  right  smart  towards  the 
middle  of  the  day,  and  from  that  towards  evening;  in  fact,  the.y  began  to  drink 
right  smart  soon  after  it  was  well  understood  he  was  in  town  and  what  his  business 
was.  There  were  several  of  them  that  were  right  smartly  under  the  influence  of 
whiskey. 

Q.  Did  you  at  any  time  during  that  day  see  Mr.  Featherston  surrounded  by  the 
men  of  whom  you  speak,  in  a  position  that  you  thought  was  at  all  calculated  to 
break  the  peace,  and  did  yon  anticipate  anything? — A.  Well,  I  don't  know  hardly  to 
answer  that  question  ;  I  didn't  want  to  think  that  the  peace  would  be  broken,  aud  I 
wasn't  certain  that  it  wouldn't  be;  that's  just  exactly  the  situation  I  was  in. 

Q.  But  you  finally  concluded  it  would  be  if  he  staid  there,  did  yon  not  ? — A.  I  ad- 
vised him  to  that  effect;  I  believed  it.     (Printed  record,  pages  20i,  202.) 

J.  P.  Broadenax,  in  speaking  on  this  subject,  testified: 

Q.  In  this  county  it's  necessary  for  us  to  take  this  testimony,  and  we  want  to  know 
if,  under  the  feeling  existing  in  that  county,  you  think  those  people  feel  sufficiently 
aud  free  to  turn  out  and  give  evidence  and  appears  as  we  are  doiug  here?  Do  you 
think  that  they  would  like  for  this  testimony  to  betaken  inside  of  Crittenden  County, 
and  would  like  to  come  and  testify? — A.  They  say  not.  There  has  been  some  talk  of 
you  coming  over  there  and  taking  testimony,  aud  a  good  many  of  thetn  said  they 
wouldn't  turn  out;  thought  probably  there  would  be  some  trouble  after  it  was  over. 

Q.  Why  did  they  imagine  or  think  there  would  likely  be  trouble? — A.  Well,  from 
the  past  trouble,  I  suppose. 

Q.  Is  there  any  evidence  that  those  fellows  intend  to  do  any  better  T — A.  I  dou't 
know,  sir. 

Q.  Have  you  seen  any  evidence  oP  it? — A.  Well,  no,  sir;  I  have  not. 

Do  you  hear  that  they  have  abandoned  that  Winchester  business,  or  do  you  know 
or  have  you  heard  that  they  are  keeping  it  up? — A.  Well,  I  heard  that  they  abiiu- 
doned  it,  sir,  and  1  heard  again  that  they  had  their  Winchesters  here. 

Q.  You  think,  then,  that  if  I  want  to  take  any  testimony  iu  Crittenden  County 
I'd  better  send  this  young  gentleman  with  the  machine  and  lawyer,  and  stay  away 
myself? — A.  Well,  I  dou't  know,  Mr.  Featherstone ;  I  don't  think  you  would  be  safe; 
etill  I  dou't  know  whether  you  would  or  not.     (Printed  record,  page  11)8.) 


116  FEATHEESTON    VS.    GATE. 

E.  D.  Sanders,  in  speaking  on  tbis  subject,  testified : 

Q.  Under  ordinary  circninstances  it  would  be  necessary  for  us  to  take  these  depo- 
sitions within  Crittenden  County.  What  is  your  impression  as  to  the  result  of  such 
a  procedure  in  that  county  now  f — A.  I  don't  think  you  could  possibly  do  it  under 
any  circumstances. 

Q.  Why  not? — A.Simidy  because  you  would  be  assassinated  if  yon  attempted  it. 
More  than  that,  you  couldn't  get  the  men  to  come  up  there  and  give  in  their  depo- 
sitions. 

Q.  Why  would  they  object  ? — A.  From  fear  of  those  Winchester  riiles. 

Q.  Where  are  you  from  f — A.  Well,  I  was  born  in  Tennessee,  in  some  near  county  ; 
my  father  moved  from  there  to  Mississippi  when  I  was  about  three  years  old  ;  alter 
that  I  went  back  to  Lebanon  to  school,  and  was  there  four  or  five  years.  1  spent  all 
my  life  in  Tennessee,  Mississippi,  and  Arkansas. 

Q.  Are  you  a  Ecpublican  or  Democrat? — A.  Well  sir  ;  from  this  day  till  I  die,  I'm 
a  Republican. 

Q.  What  have  you  been  heretofore? — A.  I've  always  voted  the  Democratic  ticket, 
sir;  ever  since  I  lirst  voted.     (Printed  record,  page  2U0.) 

Jordan  Yeates,  in  speaking  on  the  subject  of  whether  witnesses  would 
feel  safe  in  testifying,  swears : 

Q.  I  want  to  ask  if  the  mass  of  the  voters  of  Crittenden  Connty,  the  colored  voters 
feel  free  to  tell  what  they  know,  and  how  they  voted  in  these  past  elections  in  Crit- 
tenden County  ? — A.  They  wouldn't  feel  free  to  do  it  generally,  simply  because  they 
don't  feel  they  would  be  safe  by  so  doing. 

Q.  Do  you  think  it  would  be  sale  for  that  community  for  us  to  do,  either  in  Critten- 
den County  in  Crawfordsville,  what  we  are  doing  here  ? — A.  No,  sir  ;  I  don't. 

Q.  What  is  your  opinion  would  be  the  result  of  it  ? — A.  Well,  there'd  be  a  great  ad- 
vantage taken  ;  I  don't  know  but  what  there'd  be  somebody  killed  to-night ;  if  not 
they  would  be  chased  mightily;  have  to  leave  there.     (Printed  record,  page  194.) 

J.  L.  Fleming,  in  speaking  on  this  subject,  testified : 

Q.  Do  you  think  it  would  be  safe  personally,  for  you  to  give  this  evidence  now  in 
Crittenden  County,  that  yon  are  giving  here  in  Memphis,  Tenn.f — A.  No,  sir;  I 
wouldn't  feel  very  safe  to  do  it.     (Printed  record,  page  195.) 

Houston  White  (col.),  a  witness  on  behalf  of  the  contestant,  being 
first  duly  sworn,  testified  as  follows : 

Q.  What  is  your  name  ? — A.  Houston  White. 

Q.  Where  do  you  live? — A.  Crittenden  County,  Arkansas. 

Q.  How  old  are  you  ? — A.  About  31  years  old. 

Q.  How  long  have  you  lived  in  Ark.  f — A.  About  19  years. 

Q.  What  is  your  business  ? — A.  Farming  and  preaching. 

Q.  Were  you  in  Crawfordsville  sometime  since  when  Mr.  Featherston  and  his  at- 
torneys, Mr.  Walsh  and  Mr.  Eldridge,  were  there  for  the  purpose  of  taking  investiga- 
tion ? — A.  I  was. 

Q.  Was  that  investigation  taken  ? — A.  It  was  not. 

Q.  Why  not  ? — A.  Because  the  threats  by  the  white  people  had  scared  the  colored 
population  in  such  a  way  they  was  afraid  to  come  and  give  their  depositions. 

Q.  You  think  the  colored  people  would  have  testified  there,  if  that  investigation 
had  been  taken  ? — A.  No,  sir ;  they  would  not. 

Q.  Do  you  think  Mr.  P'eatherstou  or  his  lawyers  would  have  been  safe  if  thej'  con- 
tinued there  in  the  investigation  ? — A.  No,  sir. 

Q.  W^hy  ? — A.  On  account  of  the  feeling  of  the  Democratic  party  against  them. 

Q.  What  was  that  feeling? — A.  They  wanted  Mr.  Cate  to  have  the  ofHce,  and  they 
knew  Mr.  Featherston  had  the  majority  of  votes  and  they  would  have,  cvt^rybody 
believed,  assassinated  Mr.  Featherston  and  all  his  friends  before  they  would  have  suf- 
fered it. 

Q.  Did  you  hear  any  threats  that  day  ? — A.  I  did. 

Q.  Who  made  it? — A.  Mr.  Hayden. 

Q.  What  did  he  say  ? — A.  He  said  the  election  that  had  been  there  was  over  and 
there  wasn't  going  to  bo  any  more — no  more  elections  nor  depositions  taken  or  noth- 
ing else,  and  before  there  would  be  he  would  see  his  blood  in  that  .street,  and  Mr.  Dick 
Chetom  said,  "  You  bet  there  won't." 

Q.  Did  you  anticipate  there  would  be  a  difficulty  there  that  day  when  Mr.  Feath- 
erston and  his  lawyers  were  there  ? — A.  I  did  so,  and  felt  very  uneasy  for  Mr.  Feath- 
erston and  his  lawyers,  and  quite  uneasy  about  myself,  because  I  had  been  a  friend 
of  Mr.  Featherston's  in  the  national  election,  and  voted  for  Lim,  and  they  knew  it 


FEATHERSTON    VS.    GATE.  117 

and.  they  seen  me  with  him  I  knew  they  would  be  angry  about  it ;  they  made  some 
threats  in  regard  to  me  publicly  that  day. 

Q.  What  were  those  threats? — A.  That  if  I  didn't  keep  my  mouth  I'd  have  to  hunt 
a  new  home. 

Q.  Do  you  know  whether  Mr.  Featherston  and  his  lawyers  were  received  there  po- 
litely by  the  people  or  not? — A.  They  were  not. 

Q.  VVhero  did  they  pass  their  time  during  their  stay? — A.  The  lawyers  with  a  col- 
ored man  by  the  name  of  R.  Y.  Logan,  and  Mr.  Featherston  was  at  Mr.  Hilder- 
b  rand's. 

Q.  Have  you  heard  of  any  other  threats  having  been  made  towards  the  friends  of 
Mr.  Featherston  there  by  the  Democratic  party  ? — A.  Not  directly  ;  only  through 
other  parties.  I've  heard  some  remarks  that's  been  made  that  Mr.  Featherston  and 
the  lawyers  wasn't  going  to  come  back  there  any  more,  and  they  had  given  them  a 
warning  when  they  came  out  there;  and  they  was  gone,  and  the  darkies  needn't  be 
expecting  them  or  talking  for  them,  because  they  wasn't  coming  back. 

Q    Wlio  heard  that  statement? — A.  Henry  Davis. 

Q.  Do  you  think  that  these  witnesses  would  have  testified  if  this  investigation  had 
been  carried  on  at  Crawfordsville  ? — A.  No,  sir ;  I  do  not. 

Q.  How  many  witnesses  do  you  think  we  could  have  gotten  there  ? — A.  I  don't  feel 
safe  to  say  you  would  have  gotten  over  20  in  the  township.  They  are  afraid  of  those 
Winchesters,  and  they  say  so. 

Q."  Who's  got  possession  of  those  Winchesters? — A.  The  Democratic  party's  got 
possession  of  them.     (Printed  record,  pages  181, 182.) 

Stephen  James  (white),  a  witness  for  the  contestant,  being  first  duly 
sworn,  testified  as  follows: 

Q.  What  is  ycur  name  ? — A.  Stephen  James. 

Q.  Where  do  you  live  ? — A.  Crittenden  County,  Arkansas. 

Q.  What  is  your  occupation  ? — A.  Farmer,  mercltant,  saw-mill  man,  little  of  every- 
thing. 

Q.  Do  you  know  the  feeling  of  the  people  in  Crittenden  County  towards  Mr.  Feath- 
erston ? — A.  Well,  I  reckon  personally  their  feeling  is  good  enough,  but  politically,  I 
don't  think  it's  very  good. 

Q.  Have  you  ever  heard  any  threats  made  toward  Mr.  Featherston? — A.  I  never 
heard  any  direct  threats  made. 

Q.  Do  you  know  whether  there  was  any  intimidation  used  in  Crittenden  County 
in  the  Congressional  election,  of  which  Mr.  Featherston  was  an  aspirant  ? — A.  Well,  I 
couldn't  say  there  was,  more  than  the  Democratic  party  were  all  under  arms  furnished 
by  the  Government,  I  suppose,  or  the  State;  I  don't  know  whether  it  had  any  tend- 
ency to  intimidate  or  not ;  I  am  satisfied  there  was  intimidation  done  in  the  State 
election,  and  I  was  credibly  informed  that  the  people  voted  in  the  Congressional  elec- 
tion as  though  they  did  in  the  State  election. 

Q.  Do  you  think  Mr.  Featherston  could,  with  safety  to  his  person  or  with  any  de- 
gree of  success  as  to  the  result,  take  testimony  in  Crittenden  County,  as  to  his  Con- 
gressional election  ?— A.  I  have  told  Mr.  Featherston  before  that  I  thought  his  safety 
very  doubtful,  and  for  my  part,  I  would  not  take  those  depositions  in  Crittenden 
Couuty  ;  my  reason  for  saying  this  is  that  I  was  a  contestant  for  the  office  of  county 
treasurer  on  the  People's  ticket,  and  I  was  repeatedly  threatened  with  death  if  I 
continued  in  an  investigation  which  I  commenced. 

Q.  How  old  are  you  ? — A.  I  am  60  years  of  age. 

Q.  How  long  have  you  lived  in  Arlcansas? — A.  Since  the  tenth  of  February,  1845. 

y.  About  how  much  land  have  you  in  cultivution? — A.  I  cultivated  800  acres 
1888. 

*  *  »  *  «  *  « 

Q.  How  long  have  you  voted  the  Democratic  ticket  ? — A.  From  James  K.  Polk  up. 

Q.  Why  did  you  oppose  what  claimed  to  be  the  Democratic  organization  of  your 

^ounty  ? — A.  Because  I  knew  that  the  dictatorial  policy  of  the  so-called  Democratic 

larty  in  the  county,  with  their  Winchester- rifle  policy,  would  destroy  the  labor  in- 

jrests  and  the  agricultural  interests  of  the  entire  county. 

Q.  Do  you  think  that  the  average  citizens  of  your  couuty  feel  free  to  express  their 
candid  opinions  within  the  county  at  the  present  time  ? — A.   I  do  not. 

Q.  Do  you  know  whether  this  Winchester  rifle  crowd  is  still  drilling  at  their  arm- 
ory at  Crawfordsville? — A.  I  heard  that  they  was  about  a  week  ago,  or  two  weeks 
ago.     (Printed  record,  page  186, 187.) 


118  FEATHERSTON   VS.    CATE. 

Eev.  T.J.  Joues,  in  speaking  on  tbis  subject,  testified: 

Q.  Have  you  kept  pretty  well  posted  as  to  the  strength  of  the  Republican  party  in 
the  county  ? — A.  I  has  been,  sir,  for  several  years,  thougli  there  ain't  many  people 
know  it ;  but  I  has  been  for  several  years. 

Q.  You  counted  the  Republican  strength  of  the  county  at  about  what?— A.  I  was 
supposing  there  was,  that  is,  in  the  county  something  like  about  1,800. 

Q.  1,800  majority  ? — A.  Yes,  sir.     (Printed  record,  page  212.) 

J.  H.  Williams,  on  this  subject,  testified  : 

Q.  Do  you  believe  it  would  be  safe  for  Mr.  Featherston  to  take  testimony  (contest 
case)  inside  of  Crittenden  County? — A.  Well,  it  would  be  owing  to  the  precinct  you 
were  in. 

Q.  Say  at  Crawfordsville?— A.  I  couldn't  say  that,  whether  he  would  be  or  not. 

Q.  Do  you  believe  that  the  witnesses  would  be  willing  to  turn  out  and  testify  at 
Crawfordsville  ? — A.  No,  sir ;  I  don't  think  the  witnesses  would  come ;  about  Feath- 
erston being  safe  there,  I  couldn't  say  that,  but  I  don't  think  the  witnesses  would 
come  there  ;  but  Featherston  is  different  from  a  witness.  Whether  Featherston  would 
be  killed  or  not  I  couldn't  say  that. 

Q.  What  is  the  cause  of  this  feeling  that  exist*  among  the  witnesses? — A.  Well, 
they  keep  a  military  company  there  all  tlietime.  They  have  Winchesters  at  any 
minute,  and  a  man  going  there  to  testify  wouldn't  feel  safe,  let  him  be  who  he  would 
be ;  that's  my  idea  about  it,  sir. 

Q.  If  it  was  necessary  for  you  to  take  the  testimony  of  all  the  witnesses  in  your 
county,  of  all  the  voters  that  had  voted  for  you  in  your  county,  would  you  persist 
in  your  contest  or  would  you  abandon  it  ? — A.  I  think  it  would  be  best  to  abandon 
it,  sir. 

Q.  Why? — A.  My  opinion  is  the  witnesses  would  be  afraid  to  turn  out,  (Printed 
record,  pages  213-14.) 

Thompson  Foster,  on  this  subject,  testified  : 

Q.  Do  you  think  that  the  citizens  of  your  neighborhood  would  feci  perfectly  free 
to  turn  out  and  testify  under  the  circumstances  that  exist  there  now,  or  would  they 
rather  not  do  it? — A.  Well,  no,  sir ;  I  don't  think  they  really  would  be  perfectly  sat- 
isfied in  doing  so.  I  don't  know  about  the  safe  part.  They  may  be  perfectly  safe  in 
doing  so,  but  I  doubt  whether  they'd  be  satisfied  to  do  so. 

Q.  Why  wouldn't  they  be  satisfied? — A.  I  don't  know,  sir;  may  be  on  account  of 
the  Winchesters. 

Q.  You  feel  now  like  yon  wouldn't  like  to  answer  too  many  questions  about  this 
matter? — A.  Well,  of  course  I  feel  mj^self  I  am  able  to  answer,  but  I  wouldn't  like  to 
answer  too  many  particular  questions  in  regard  to  the  Winchester  rifle  company. 
(Printed  record,  page  206.) 

David  Furgesou,  on  this  subject,  testified  : 

Q.  From  what  you  know  of  the  feeling  in  that  county  that  has  existed  from  the 
ISth  of  July  up  to  the  present  time,  do  you  think  that  the  taking  of'depositious 
would  be  perfectly  safe  in  Crittenden  County  ? — A.  I  know  it  wouldn't  be  safe  for  Mr. 
Featherston,  Ms  attorney,  nor  his  short-haud  writer.     (Printed  record,  page  209.) 

Phillips  County. 

There  is  an  agreement  in  the  record  as  to  the  vote  of  Phillips  County, 
whereby  it  is  agreed  that  the  contestant  is  to  have  57  more  votes  than 
were  returned  for  him,  and  that  the  contestee  is  to  have  57  votes  stricken 
from  his  returned  vote,  and  that  the  contestant  is  to  be  credited  with  a 
majority  of  18  in  Hickory  Ridge  Township.  These  numbers  added  to- 
gether make  132,  which  should  be  deducted  from  Gate's  majority,  and 
the  vote  would  then  stand  thus  : 

Cafe's  majority 592 

Deduct  the 132 

Leaving  Gate's  majority 460 

Cross  County. 

In  the  township  of  Smith,  in  Cross  County,  Featberston  is  returned 
as  receiving  15  votes  and  he  proves  up  29  votes.  This  overthrows  the 
return,  and  leaves  the  parties  to  prove  up  their  votes.     The  result  is 


FEATHERSTON   VS.    GATE.  119 

Featherston  gets  14  more  votes,  and  Gate,  not  having  proved  any  votes, 
loses  84,  making  a  difference  in  favor  of  Featherston  of  98.  The  vote 
would  then  stand  thus  : 

Gate's  majority 460 

Deduct  the 98 

Leaving  Gate's  majority 362 

St.  Francis  County. 

From  the  township  of  Franks  the  contestee  is  returned  as  receiving 
269  votes  and  the  contestant  131  votes.  The  proof  shows  that  all  of  the 
judges  and  clerks  of  election  were  Democrats ;  that  the  ballot-box  was 
taken  out  of  the  presence  of  the  United  States  supervisor  at  noon  for 
an  hour,  and  for  an  hour  after  the  polls  closed.  This  might  have  been 
enough  to  destroy  the  prima  facie  character  of  the  return.  But  if  it 
were  otherwise,  the  testimony  shows  the  return  is  false  and  fraudulent. 
The  contestant,  who  is  returned  as  receiving  131  votes,  proves  by  195 
persons,  whose  names  appear  on  the  poll-book  as  voting,  that  they  voted 
for  him. 

(Printed  record,  pages  47-182;  229-75. 

The  contestee  who  is  returned  as  receiving  269  votes,  has  only  proven 
up  112.  There  is  hearsay  testimony  tending  to  show  that  24  other  persons 
voted  for  contestee.  The  names  of  the  24  persons  whom  it  is  said  voted 
for  contestee  are  not  on  the  poll-hooJc.  There  is  hearsay  testimony  tend- 
ing to  show  that  17  persons  whose  names  are  on  the  poll-book  also  voted 
for  contestee. 

In  Wallace  vs.  McKinley,  Forty-eighth  Congress,  it  is  said  : 

The  vicious  tendency  of  hearsay  testimony  in  election  cases  needs  no  demonstra- 
tion. 

Wash  Rooks,  a  colored  man,  swears  there  were  50  colored  men  voted 
for  contestee  in  Franks  Township.  On  cross-examination  he  was  asked 
to  name  some  of  the  50  he  saw  vote  for  contestee.  He  finally  named 
8 ;  out  of  the  8  named  4  of  the  names  are  not  found  on  the  poll-book ; 
2  of  the  remaining  4  swear  they  voted  for  contestant ;  aside  from  this 
the  witness  is  successfully  impeached,  and  it  appears  in  testimony  he 
was  expelled  from  the  Masonic  fraternity  for  stealing  the  money  of  the 
lodge. 

Upon  the  testimony  contestee  has  only  proven  112  votes  out  of  the 
269  returned  for  him.  Hence,  157  votes  should  be  deducted  from  the 
returned  vote,  and  the  vote  would  then  stand  thus: 

Gate's  majority 362 

Deduct 157 

Leaving  Gate's  majority 205 

The  contestant  was  returned  as  receiving  131,  and  has  proven  195. 
The  difference  between  these  being  64,  and  this  amount  should  be  de- 
ducted from  the  vote  of  the  contestee.    The  vote  would  then  stand  thus : 

Gate's  majority 205 

Deduct 64 

Leaving  Gate's  majority 141 

BlacJcfisli  Township. 

In  this  township  no  election  was  held.  The  proof  shows  that  29  per- 
sons having  the  qualification  of  electors  attended  at  the  voting  place 
on  the  day  of  the  election  for  the  purpose  of  voting  for  contestant,  and 


120  PEATHERSTON    VS.    CATE. 

that  the  judges  of  election  would  not  open  the  polls.  This  township 
must  pass  under  the  rule  laid  down  as  to  the  townships  of  Furgeson 
and  Idlewild,  in  Crittenden  County,  and  can  not  be  counted. 

Lee  County. 

In  relation  to  Independence  Township  the  testimony  is  as  follows: 
Milton  Powell,  being  duly  sworn  : 

Quest.  1.  Are  you  of  lawful  age? 

Yes.   ' 

Quest.  2.  Are  you  a  resident  of  Lee  County? 

Yes. 

Quest.  3.  Are  you  a  resident  of  Independence  Township  f 

Yes. 

Quest.  4.  Did  vou  vote  on  6tb  day  of  Nov.,  1888? 

Yes. 

5.  Whom  did  yon  vote  for  Congress  for  the  first  Congressional  district? — Ans.  Mr. 
Featherston. 

Quest.  6.  Did  you  work  on  that  day  to  get  votes  for  Mr.  Featherston  ? — Ans.  I  did. 

Quest.  7.  With  what  voters  did  you  work,  the  Democratic  or  Republican  votera  ? — 
Ans.  With  the  Republican  voters. 

Quest.  8.  What  kind  of  tickets  did  you  use  in  that  election  ? — Ans.  I  used  red  tick- 
ets, such  as  I  tile  here  as  an  exhibit. 

REPUBLICAN  TICKET. 


Election,  Tuesday,  November  6th,  1888. 

For  President, 

BENJAMIN  HARRISON, 

of  Indiana. 

For  Vice-President, 

LEVI  P.  MORTON, 

of  New  York. 


Presidential  electors. 
At  large— M.  W.  GIBBS,  W.  H.  H.  CLAYTON. 


First  district— GEORGE  W.  BELL. 
Second  district— A.  M.  MIDDLEBROOKS. 
Third  district— J.  B.  P'RIEDHEIM. 
Fourth  district— CHAS.  D.  GREAVES. 
Fifth  district— SAMUEL  MURPHY 

For  Congress,  First  Congressional  district, 
L.  P.  FEATHERSTON, 
of  St.  Francis  County. 

[Note. — The  ticket  submitted  is  printed  on  red  paper,  with  a  design  in  blue  on  back.] 

Quest.  9.  What  voters  voted  that  ticket  that  day? — Ans.  The  J^publicans  voted/ 
that  ticket ;  it  is  a  Republican  ticket. 

Ques.  10.  What  was  the  result  of  your  work  ? — Ans.  I  kept  count  of  ninety-two  of 
those  Republican  tickets  that  went  out  of  my  hands. 

Ques.  11.  What  was  done  with  those  tickets,  ninety-two? — Ans.  They  were  voted. 

Quest.  VZ.  How  do  you  know  they  were  voted  ? — Ans.  I  went  with  them  to  the  bal- 
lot-box and  saw  them  put  in. 

Ques.  13.  How  many  votes  were  polled  here  that  day? — Ans.  Something  over  six 
hundred. 

Quest.  14.  What  is  the  political  complexion  of  this  dist. ;  which  has  a  majority  ? — 
Ans.  The  Republicans  have  a  large  majority. 

Ques.  15.  Can  a  majority  of  the  colored  people  read  and  write  ? — Ans.  Majority 
can't  read  and  write. 

Cross-examination. 

Ques.  27.  Did  you  give  out  more  than  ninety-two  tickets  that  day  to  voters  ? — Ans. 
I  did. 

Ques.  28.  How  many  tickets  did  you  give  out  that  day? — An.s.  I  think  one  hundred 
and  twenty  or  twenty-five. 


FEATHEESTON    VS.    CATE  121 

Qnes.  35.  Where  were  you  standing  when  those  ninety-two  persons  voted  ? — Ans. 
I  went  with  each  of  them  to  the  polls. 

Qnes.  31).  Did  they  all  vote  for  Mr.  Featherston  ? — Ans.  They  all  voted  the  red 
ticket  like  one  tiled  ;  I  saw  them  put  it  in. 

Ques.  37.  From  the  time  you  gave  them  the  ticket  to  the  time  they  voted  did  any 
one  have  the  op[>ortunity  to  change  any  name  on  the  ticket  ?— Ans.  No,  sir. 

Qnes.  38.  Then  you  positively  swear  that  those  ninety-two  persons  voted  for  Mr. 
Featherston? — Ans.  Yes,  sir;  that  is  my  belief. 

Qnes.  39.  Are  you  positiveor  not  that  said  ninety-two  men  voted  for  Featherston? — 
Ans.  J.  am  positive  they  voted  for  his  name  on  the  red  ticket, 

Ques.  40.  Are  you  po.sitive  that  Mr.  Featherston's  name  was  not  scratched  on  a 
single  one  of  those  ninety-two  tickets  you  gave  out? — Ans.  I  am  positive, 

Ques.  41.  What  time  of  day  did  those  ninety-two  men  vote? — Ans.  From  9  a.  m. 
to  5  p.  m. 

Ques.  42.  Do  yon  know  of  others  voting  for  Mr.  Featherston  beside  those  ninety- 
two  that  day  ? — Ans.  I  do  not. 

Quest.  43.  Can  you  give  us  some  of  the  names  of  the  ninety -two  that  voted  your 
ticket  ? — Ans.  Yes,  sir.  Anderson  Powell,  Wm.  Otey,  Milton  Powell,  myself,  Nelse 
Robinson,  Jordan  Woodson,  Burl  Woodson,  Tom  Woodson,  Jimmie  Turner  and  son  ; 
can't  think  of  bis  name.  I  didn't  take  a  list  of  the  names,  but  when  one  voted  I 
marked  it  down. 

Q  ues.  &7.  Abont  how  many  Republican  votes  were  cast  here  on  the  6th  of  Nov.  last  ? — 
Ans.  There  might  have  been  two  hundred  and  fifty  or  three  hundred ;  may  be  not  so 
many. 

Ques.  88.  Howmany  of  that  number  voted  for  Mr.  Featherston? — Ans.  Ninety-two, 
I  know,  cast  that  red  ticket  for  him. 

Redirect : 

Ques.  1.  In  those  elections  in  this  township  in  which  you  have  voted  for  past  eight 
or  ten  years  ;  now,  have  the  colored  people  voted  together  or  have  been  divided  ? — 
Ans.  All  voting  together. 

Ques.  2.  How  have  they  voted  in  county  elections? — Ans.  They  have  never  taken 
any  part  in  county  elections,  except  a  few. 

Ques.  3.  Have  they  always  taken  a  deep  interest  m  national  elections,  and  for  Con- 
gress?—Ans.  Yes,  sir;  and  governor. 

Qnes.  12.  Do  you  know  of  any  Republicans  that  have  been  appointed  j  adges  of  the 
election  in  this  county  since  you  have  been  voting? 

(Objected  to.) 

Ans.  No,  sir  ;  I  think  not. 

Ques.  13.  Can  you  think  of  a  single  Republican  judge  that  was  appointed  at  the 
last  election  ? — Ans.  Can  not. 

Ques.  14.  Who  has  a  majority  in  Lee  County,  the  Republicans  or  Democrats  ? — A. 
Always  heard  the  Republicans. 

(Objected  to  as  hearsay.) 

Ques.  15.  Did  the  rain  keep  the  voters  away  on  the  last  election,  and  was  over  six 
hundred  votes  a  good  turn-out  in  this  township. 

(Objected  to  as  leading.) 

Ans.  Don't  think  the  rain  kept  the  voters  away,  and  the  vote  was  a  good  turn-out 
for  the  township. 

Ques.  21.  Did  any  Republicans  canvass  through  here  for  Mr.  Featherston  ?— Ans. 
None  as  I  know  of. 

Ques.  22.  If  you  haveseen  any  thing  in  any  paperssince  you  were  on  the  stand,  any 
reference  to  the  frauds  in  theelections  in  Lee  County,  state  it. — Ans.  I  saw  in  a  paper 
yesterday  something  in  reference  to  it. 

Ques.  23.  What  paper  did  you  see  it  in,  and  what  was  it  ? — Ans.  I  saw  that  there 
were  thirty-seven  hundred  voters  in  Lee  County,  and  iifteen  hundred  Democrats 
achieved  a  victory  for  that  party. 

Ques.  24.  Who  did  the  paper  say  made  that  statement? — Ans.  .Judge  Hutton,  a 
member  of  the  Democl-atic  party  and  a  member  of  the  legislature.  (Printed  record, 
page  26  to  31.) 

There  is,  under  the  proof,  circumstances  and  facts  sufiBcient  to  im- 
peach the  return  aud  put  the  parties  to  proof.  It  is  Satisfactorily  proven 
that  the  township  is  largely  Eepublican ;  that  632  votes  were  cast,  show- 
ing a  fall  turnout;  and  the  contestant  is  only  returned  8'J  votes. 

The  vote  for  Presidential  electors  was  as  follows: 

Harrison 435 

Cleveland 196 

Republican  majority 2.39 


122  FEATHERSTON   VS.    GATE.  . 

Here,  tben,  is  a  case  where  we  have  239  votes  uot  connted  forany  one 
for  Congress,  and  this,  too,  in  tlie  face  of  testimony  of  witnesses  saying 
the  Kepiiblicaus  turned  out  well  and  were  in  the  majority  and  voting 
tlie  i)arty  ticket. 

The  contestee  claims  that  the  contestant  has  admitted  that  he  received 
224  votes  in  Independence  township  and  cannot  now  invoke  the  protec- 
tion of  that  rule  where  the  return  is  overthrown  and  the  parties  put  to 
proof. 

The  view  we  take  of  the  matter  renders  it  unnecessary  to  pass  upon 
the  question  of  estoppel. 

What  is  claimed  as  a  concession  by  the  contestant,  that  the  contes- 
tee received  224  votes  in  this  township,  is  contained  in  the  notice  of 
contest  on  i)age  7,  as  follows  : 

That  at  the  precinct  of  Independence,  in  the  county  of  Lee,  in  said  district,  at  an 
election  lield  on  tlie  6tb  day  of  November,  1888, 1  received  397  votes  and  yoii  received 
224  votes;  that  the  election  officers  of  said  township,  who  are  partisans  of  yours, 
throufih  fraud  or  mistake,  returned  that  I  received  89  votes,  and  that  you  received 
224  ;  that  the  votes  as  thus  returned  by  the  election  officers  of  said  township  were  by 
the  county  clerk  of  said  county  certilied  to  the  .-ecretary  of  state,  and  by  him  laid 
before  the  governor  of  said  State,  and  by  him  counted  in  determining  the  number  of 
votes  cast  lor  each  of  us  for  Kepresentative  in  said  district.  I  shall  therefore  claim 
on  contest  that  I  be  allowed  308  more  votes  than  were  returned  and  certified  for  me 
from  said  township. 

This  is  not  a  concession  that  contestee  received  224  legal  votes,  but  is 
in  the  nature  of  a  recital  of  the  state  of  facts  which  he  would  be  able  to 
establish  by  proof. 

This  was  at  the  inception  of  the  contest,  when  contestant  may  not 
have  had  full  information. 

But  be  that  as  it  may  the  recitals  in  the  notice  can  have  none  of  the 
sanctity  and  binding  force  of  an  agreement  or  stipulation  and  can  not 
be  construed  into  a  concession. 

The  contestee  did  not  treat  this  statement  as  a  concession  that  he  re- 
ceived 224  votes,  but  on  the  contrary  he  filed  the  following  answer: 

As  to  the  precinct  of  Independence,  in  the  county  of  Lee,  I  deny  all  the  charges  of 
fraud  and  mistake,  and  say  that  the  votes  were  correctly  counted,  returned,  and  cer- 
tified. I  deny  that  you  received  three  hundred  and  ninety-seven  (397)  votes,  but  you 
received  eighty-nine  votes,  and  I  received  two  hundred  and  forty-four  (244)  votes  in 
said  precinct  or  township.     (Record,  p.  17.) 

Instead  of  the  record  making  a  stipulation  or  concession  that  con- 
testee had  received  224  legal  votes,  the  number  of  legal  votes  was  not 
admitted  by  contestant  nor  was  the  alleged  concession  accepted  as  such 
by  the  contestee  in  lieu  of  evidence,  but  he  set  up  a  claim  to  244  votes 
instead  of  224  which  he  now  claims  as  having  been  conceded. 

The  parties  having  failed  to  agree  upon  the  matter  the  question 
stands  upon  the  proof,  which  shows  that  a  fraudulent  return  was  made 
by  the  election  oflicers. 

Only  one  witness  was  examined  in  Independence  Township.  The  wit- 
ness giving  the  testimony,  on  leaving  the  stand  was  arrested  for  per- 
jury, and  placed  under  $1,000  bond  to  answer  to  the  State  court.  The 
attorney  for  contestee  from  that  time  on  proclaimed  he  would  cause  the 
arrest  of  all  persons  who  testified  for  contestant,  if  he  thought  they  tes- 
tified falsely. 

After  that  time  testimony  was  taken  in  relation  to  that  township  out- 
side of  the  county,  and  Joseph  Kennedy,  the  chairman  of  the  Repub- 
lican county  committee,  testified  as  follows : 

Int.  Why  do  you  come  to  this  county  to  give  your  testimony  in  this  case;  is  it  be- 
cause of  threats  of  violence  there  ? — Aus.  So  far  as  I  am  concerned  I  am  uot  person- 
ally alraid,  but  there  have  been  threats  of  violence  used  against  Featherston  men. 


m 


FEATHERSTON   VS.    GATE.  123 

Int.  Was  not  the  first  witness  who  testified  in  Lee  Co.  arrested  and  put  under  bond 
on  account  of  his  testimony  ? — Ans.  Yes,  sir. 

Int.  Was  not  that  witness  also  abused  while  under  arrest  by  one  Jacob  Shane,  and 
is  not  this  a  matter  of  common  notoriety  among  the  colored  people  of  your  Co.  ? — Ans. 
Yes,  sir. 

Int.  What  position  did  this  Jacob  Shane  occupy  in  the  party  prior  to  this  last  elec- 
tion ? — Ans.  He  was  chairmau  of  the  Co.  central  committee,  Republican. 

Int.  Why  has  he  been  deposed  from  that  position  ? — Ans.  On  account  of  the  man- 
ner in  which  he  had  previously  handled  the  Republican  election  tickets. 

Int.  Is  it  not  generally  understood  by  the  Republicans  of  Lee  Co.  that  Jacob  Shane 
has  proven  treacherous  to  his  party  ? — Ans.  Yes,  sir. 

Int.  Of  what  nationality  is  this  Jacob  Shane? — Ans.  He  is  a  Jew. 

Int.  How  were  you  first  Induced  to  become  favorable  to  Mr.  Featherston  ? — Ans.  By 
the  representations  of  this  Mr.  Shane.  He  made  a  speech  and  endorsed  Mr.  Feathers- 
ton  and  urged  the  colored  people,  as  there  was  no  Republican  in  the  field,  to  support 

r.  Featherston.     He  was  for  Featherston  up  to  the  day  before  the  election. 

Int.  What  kind  of  a  ticket  was  Mr.  Featheraton's  name  on? — Ans.  It  was  a  kind  of 
a  red  ticket  with  purple  back. 

lilt.  Was  that  the  Presidential  Republican  ticket,  with  the  President  electors  all 
on  it  ? — Ans.  Yes,  sir. 

Int.  Is  it  not  a  difficult  matter  to  persuade  a  colored  man  to  go  back  on  his  national 
ticket? — A-us.  Yes,  sir;  it  is  a  difficult  matter. 

Int.  Was  it  generally  understood  by  the  whole  Republican  party  of  Lee  Co.  that 
they  should  support  Featherston  ? — Ans.  Yes,  sir. 

Int.  What  is  the  political  complexion  of  Independence  Township? — Ans.  Repub- 
lican by  large  majority.     (Printed  record,  page  47.) 

T.  F.  Carter,  being  first  duly  sworn,  deposes  as  follows : 

Int.  What  is  your  name,  age,  and  residence  ? 

My  name  is  T.  F.  Carter ;  age,  27 ;  and  residence  Marianna, 

Int.  How  long  had  you  lived  in  the  county  before  the  November  election  ? — Ans.  I 
had  lived  in  that  township  10  months  before  that  election,  and  in  the  State  since 
1885. 

Int.  Did  you  vote  in  that  township  ? — Ans.  Yes,  sir. 

lut.  For  whom  did  you  vote  for  Congressman,  Cate  or  Featherston  ? — Ans.  Feath- 
erston. 

Int.  What  are  you,  Republican  or  Democrat  ? — Ans.  I  am  a  Republican. 

Int.  Was  Featherston's  name  on  the  Republican  national  ticket? — Ans.  Yes,  sir; 
it  was. 

Int.  What  is  the  political  complexion  of  Independence,  the  one  in  which  you 
voted  ? — Ans.  I  know  it  to  be  a  fact  that  is  against  my  interests  to  state  any  further. 

Int.  Why  is  it  against  your  interests  to  testify  in  this  cause? — Ans.  My  friends  ad- 
vised me,  in  view  of  my  condition,  and  that  as  I  had  a  little  property  there,  to  have 
nothing  to  do  with  the  contest. 

Int.  Do  you  feel  that  in  view  of  your  personal  and  property  interests  there  that  it 
would  be  unsafe  for  you  to  testify  in  this  case  ? — Ans.  Yes,  sir. 

Int.  What  position  did  you  occupy  on  the  day  of  election  by  appointment? — Ans. 
Several  told  me  since  that  I  was  appointed  supervisor,  but  I  knew  nothing  about  it. 

Int.  Were  the  parties  who  advised  you  as  to  your  safety  Republican,  or  Democrats, 
and  did  they  seem  to  be  advising  you  for  your  personal  welfare  ? — Ans.  Yes,  sir  ;  they 
advised  me  for  my  future  living. 

Ins.  Is  it  not  a  fact  that  you  left  home  the  night  after  you  were  subpoenaed  to  tes- 
tify in  this  case? — Ans.  Yes,  sir;  upon  the  advice  of  my  friends  I  went  away, as  I 
diiln't  feel  safe.  I  was  not  afraid  that  the  Republicans  would  molest  me.  I  know 
about  how  the  vote  was;  but  I  don't  care  to  testify. 

Int.  Did  you  take  a  very  active  part  in  the  election  and  work  very  hard  for  your 
ticket? — Ans.  Yes,  sir;  I  did. 

Int.  Are  the  colored  people  down  there  generally  intimidated  ? — Ans.  I  was  afraid 
to  testify  there,  and  other  colored  people  were  influenced  by  the  same  fear.  (Printed 
record,  page  48-9. 

J.  H.  Cox,  being  first  duly  sworn,  deposes  as  follows: 

Int.  What  is  your  name,  age,  residence,  and  occupation? — Ans.  J.  H.  Cox  is  my 
name;  my  age  is  25;  my  residence  Independence  Township,  Lee  Co.,  Ark. ;  I  am  a 
schoolteacher;  I  have  been  living  12  months  in  this  State,  6  months  in  Lee  Co.,  and 
30  days  in  Independence  Township. 

Int.  What  are  your  politics? — Ans.  I  am  a  Republican. 

Int.  Hasthearrest  of  Milton  Powell  for  testifying  in  thiscase  had  the  eiFcct  of  deter- 
ring others  from  testifying  in  the  case  ?— Ans.  Several  have  told  me  that  they  would 
not  testify  because  they  were  afraid. 


124  FEATHERSTON   VS.    CATE. 

Int.  Why  did  you  not  return  to  testify  after  you  had  promised  me  to  do  so? — Ans.  I 
■was  advised  not  to  come  on  account  of  the  feeling  in  this  matter.  A  friend  of  mine  in- 
formed me  that  Milton  Powell  had  heen  arrested  and  said  he  was  afraid  I  would  bear- 
rested  and  advised  me  to  stay  away,  which  I  did.     (Printed  record,  page  49). 

The  conduct  of  the  contestee's  attorney  could  have  but  one  object  and 
effect,  and  that  was  to  intimidate  other  witnesses.  There  is  direct  tes- 
timony from  one  witness,  and  no  attempt  was  made  to  impeach  him, 
showing  that  92  votes  went  into  the  box  for  the  contestant.  The  re- 
turns show  89  for  Featherston  and  224  for  the  contestee.  There  is 
enough  evidence  to  impeach  the  return  and  put  the  parties  to  jiroof. 
The  friends  of  the  contestee  in  Independence  Township,  like  his  friends 
in  Crittenden  County,  prevented  full  proof  being  made,  and  can  not 
complain  if  we  apply  the  rule  as  to  Independence  Township  that  was 
applied  to  Scanlan  and  Cat  Island,  which  we  do.  Full  jjroof  of  the 
vote  was  not  allowed  to  be  made,  and  in  such  a  case  he  who  prevented 
it  should  suffer,  if  any  one. 

We  have  no  hesitation  in  adopting  this  rule  in  relation  to  this  town- 
ship, because  the  contestee  knew  of  the  proof  made  by  the  contestant. 
He  could  have  taken  proof  and  shown  his  true  vote.  He  elected  to  rely 
on  intimidation  of  contestant's  witnesses,  and  must  abide  the  conse- 
quences of  his  election.  He  was  at  liberty  to  have  shown  that  319  of 
the  persons  voting  at  that  election  did  not  vote  tor  either  candidate 
for  Congress,  and  thus  have  explained  why  it  was  that  the  contestant 
ran  behind  the  Republican  electors,  but  he  has  not  done  so. 

The  result  is,  that  the  contestee  must  lose  224  votes  returned  for  him, 
and  the  contestant  m  ust  be  allowed  3  more  votes  than  were  returned 
for  him  ;  these  two  amount  to  227,  for  which  the  contestant  should  re- 
ceive credit.    The  vote  would  then  stand  thus  : 

Gate 141 

Featherston 227 

Making  a  majority  for  Featherston  of 86 

There  is  objection  to  the  testimony  taken  before  Avery,  a  notary 
public  at  Memphis,  Teun.,  which  testimony  we  have  admitted  and  con- 
sidered as  competent  in  arriving  at  a  conclusion  in  this  case.  The 
ground  of  objection  is,  that  the  contestee  did  not  have  notic'e  of  the 
taking.  The  contestee  does  not  deny  that  Berry,  the  person  upon 
whom  it  is  claimed  notice  was  served,  was  his  attorney,  but  his  claim  is 
the  technical  one  that  he  was  not  his  attorney  for  taking  depositions 
outside  of  Crittenden  County.  The  technical  character  of  this  objec- 
tion is  still  more  apparent  when  it  is  remembered  that  the  record-siiows 
that  Bej?ry  was  employed  to  take  the  testimony  relating  to  Crittenden 
County. 

It  appears  from  the  testimony  objected  to  that  contestaiit,  with  his 
attorneys  went  to  Crittenden  County,  and  there  met  Berry,  the  attorney 
of  contested;  that  before  going  there  an  understanding  existed  that 
Berry  should  act  as  notary  public  to  take  the  depositions ;  that  in  the 
face  of  this  agreement  he  declined  to  so  act;  that  a  justice  of  the  peace 
was  asked  to  take  the  testimony  and  refused ;  that  there  was  danger  of 
violence,  and  threats  were  made  calculated  to  produce  the  belief  that 
bloodshed  would  follow;  that  under  that  state  of  facts  Berr;y  was  noti- 
fied as  the  attorney  of  contestee  that  the  testimony  in  relation  to  that 
eounty  would  be  taken  at  number  59  Madison  St.,  Memphis,  Tenn.,  at  9 
o'clock  on  February  25,  1889. 

We  think  under  this  state  of  facts  notice  to  Berry  would  be  sufficient, 
for  it  related  to  the  taking  of  the  very  testimony  which  he  was  em- 


FEATHERSTON    VS.    GATE.  125 

ployed  to  take.  Ifc  will  not  do  to  say  that  Berry's  employment  ended 
when  contestee's  partisan  friends  had  succeeded  in  preventing  the  tak- 
ing of  testimony  in  Crittenden  County.  W.  B.  Eldridge  (p.  226,  227) 
testifies: 

Q.  Did  you  all  f»o  with  Berry,  the  lawyer  of  Gate,  and  did  he  say  anything  about 
acting  as  notary  public? — A.  He  8ai<l  he  would  act  as  notary  public,  which  be  after- 
wards refused  to  do. 

Q.  Did  you  all  take  any  depositions  there  ? — A.  We  did  not. 

Q.  What  was  the  reason  for  not  taking  depositions? — A.  We  could  not  get  a  notary 
public  ;  there  was  a  magistrate  there,  but  he  refused  to  act,  and  Mr.  Berry  refused, 
contrary  to  his  promise  and  our  expectations. 

After  detailing  his  treatment  at  Crawfordsville,  in  Crittenden  County, 
in  response  to  a  question  he  states  : 

1  notified  L.  P.  Berry,  the  attorney  of  Mr.  Gate,  that  Mr.  Featherston  would  take 
proof  in  Memphis,  Tcnn.,  at  my  office,  on  the  Congressional  contest ;  and  on  Febru- 
ary 24,  Walsh  (an  attorney)  and  myself  both  notified  Mr.  Berry  that  we  would  begin 
taking  proof  at.'iQ  Madison  st.,  Memphis,  Tenn.,  at  nine  o'clock,  February  25, 1889. 

Contestee  produces  an  ex  parte  affidavit  from  Mr.  Berry,  his  attorney, 
denying  notice  to  take  depositions  at  Memphis,  and  now  asks  that  these 
depositions  be  suppressed,  and  this  request  was  made  for  the  first  time 
after  the  printing  of  the  record. 

The  act  of  Congress  of  March  2,  1887,  provides  among  other  things 
that— 

Before  the  record  is  printed  the  Clerk  of  the  House  shall  notify  the  parties  to  be  pres- 
ent at  a  day  named  at  the  openi.ng  of  the  testimony,  and  of  agreeing  upon  the  parts 
thereof  to  be  printed;  that  the  depositions  shall  be  opened  in  the  presence  of  the 
parties  or  their  attorneys,  and  that  such  portion  of  the  testimony  as  the  parties  may 
agree  upon  shall  be  printed;  that  in  case  of  disagreement  between  the  parties,  the 
Clerk  shall  decide  what  portion  of  the  testimony  shall  be  printed. 

The  intent  and  object  of  this  statute  is  obvious.  Had  it  been  fol- 
lowed the  testimony  now  complained  of  might  not  have  appeared  in  the 
printed  record.  Had  it  been  followed,  the  objection  of  the  contestee, 
now  interposed,  would  have  been  made  known  and  the  contestant 
would  have  been  placed  in  a  position  to  elect  whether  he  deemed  the 
testimony  of  sufiicient  importance  to  make  application  to  the  committee 
or  the  House  for  permission  and  time  in  which  to  retake  it.  Instead  of 
pursuing  that  course  no  objection  to  the  printing  of  the  testimony  now 
objected  to  appears  to  have  been  made.  It  is  said  that  this  testimony 
had  not  been  filed  at  the  time  the  parties  appeared  before  the  Clerk  of 
the  House.  It  does  appear  from  the  Clerk's  record  "  that  on  account 
of  the  non-receipt"  of  certain  packages  of  testimony  for  contestant  he 
was  granted  further  time  in  which  to  file  testimony. 

It  is  not  improbable,  indeed  it  is  probable,  to  say  the  least,  that  the 
attention  of  the  contestee  was  at  that  time  called  to  the  character  and 
contents  of  the  testimony  the  contestant  was  thus  granted  leave  to  file. 

In  the  case  of  Lowry  vs.  White,  Fiftieth  Congress,  after  the  record 
was  printed,  motions  were  filed  by  both  parties  during  the  considera- 
tion of  the  case  by  the  committee  to  exclude  certain  portions  of  the 
testimony,  and  these  motions  were  denied,  and  the  attention  of  the  par- 
ties was  called  to  this  statute,  and  in  the  syllabus  this  language  is 
found : 

No  part  of  the  testimony  submitted  in  a  case  will  be  suppressed  where  the  parties 
fail  to  take  advantage  of  the  statutory  provisions  allowing  parties  to  agree  npoa 
what  portion  of  the  record  shall  be  printed  prior  to  the  hearing  of  the  case. 

In  the  case  of  a  judgment  by  default  the  court  will  not  set  aside  the 
judgment  unless  the  defendant  can  show  a  good  defense  to  the  action. 


126  PEATHERSTON   VS.    GATE. 

In  the  case  of  a  decree  pro  confesso  the  decree  will  not  be  set  aside 
unless  a  meritorious  defense  is  shown. 

If  the  coutestee  had  filed  a  motion  to  suppress  the  depositions,  on  the 
ground  he  was  taken  by  surprise,  and  alleged  that  he  could  disprove 
the  state  of  facts  shown  by  them,  he  would  stand  in  a  much  better 
light  than  he  now  does.  He  now  makes  an  objection  which  should  have 
been  made  under  the  act  of  March  2,  1887,  before  the  record  was 
printed.  After  the  record  was  printed  he  must  have  had  knowledge 
of  these  depositions.  Had  he  tlien  filed  a  motion  to  suppress  them  he 
would  stand  in  a  much  better  light,  but  he  failed  to  do  so  and  does  not 
tender  any  excuse  now  for  that  failure.  Ead  he  notified  the  contest- 
ant, on  the  receipt  of  the  printed  record,  of  an  intention  to  file  a  mo- 
tion to  suppress  these  dei)Ositions,  if  such  was  his  intention,  he  would 
have  performed  a  commendable  act,  and  would  have  at  tliat  time 
placed  the  contestant  on  notice.  Instead  of  doing  so,  however,  he  re- 
mained silent  until  after  contestant  filed  his  brief,  and  then,  instead  of 
filing  a  motion  to  suppress,  contented  himself  until  he  could  afterwards 
raise  the  question  of  a  want  of  notice.  Instead  of  coming  here  and  in- 
sisting that  he  has  a  meritorious  defense  to  the  matters  charged  in  re- 
lation to  Crittenden  County,  and  asking  time  to  establish  that  defense 
by  proof,  he  simply  asks  us  to  suppress  the  testiuDony  taken  by  the  con- 
testant, showing  and  tending  to  show  fraud,  violence,  and  intimida- 
tion, before  and  at  the  election,  and  threats  and  danger  of  violence  to 
those  who  proposed  to  make  proof  of  the  frauds. 

It  appears  from  the  testimony  of  Eldridge,  the  attorney  of  contestant, 
that  Berry,  the  attorney  of  contestee,  was  notified  of  the  time  and  place 
at  which  the  contestant  proposed  to  take  depositions,  and  it  appears 
that  a  copy  of  the  printed  record  was  sent  to  the  contestee  on  the  15th 
of  September,  1889. 

The  long  silence  of  contestee  on  the  question  of  notice,  after  he  re- 
ceived a  copy  of  the  printed  record,  and  the  neglect  to  exercise  his 
right  to  object  before  the  record  was  printed,  and  no  tender  of  proof 
made  to  contradict  what  is  shown  by  the  testimony,  are  facts  from 
which  the  inference  arises  that  the  testimony  can  not  be  contradicted, 
and  is  in  the  nature  of  a  tacit  admission  of  the  existence  of  the  state  of 
facts  shown  by  the  depositions. 

We  find  these  depositions  in  the  printed  record,  and  find  the  con- 
testee njade  no  objection  to  them  before  they  went  there  ;  we  find  that 
after  tliey  had  appeared  in  the  printed  record  he  did  not  file  any  ob- 
jection or  protest  with  the  Clerk  of  the  House  because  they  were  placed 
there ;  we  find  that  after  he  saw  them  in  the  printed  record  he  failed  to 
notify  the  contestant  that  he  would  object  to  them.  Being  a  lawyer  of 
experience,  and  having  been  a  judge,  contestee's  silence  and  failure  to 
ofler  more  tangible  defense  than  mere  technical  objections  can  only 
be  accounted  for  by  the  assumption  that  he  has  no  real  defense. 

In  view  of  these  facts  we  are  of  opinion  that  the  testimony  should 
not  be  suppressed.  We  are  not  deciding  that  testimony  may  be 
taken  without  notice,  though  there  are  authorities  which,  under  the 
facts  of  this  case,  would  justify  the  admission  of  ex  parte  evidence.  We 
might  quote  to  sustain  even  this  view,  from  Bisbee  vs.  Finley ;  Bu- 
chanan vs.  Manning;  and  Thoebe  vs.  Carlisle  et.  al.',  but  as  we  do  not 
decide  on  the  question  of  ex  parte  evidence,  in  the  admission  of  the 
depositions  in  this  case,  it  is  unnecessary. 

Under  the  broad  provisions  of  the  Constitution,  making  each  House 
of  Congress  "  the  judge  of  the  elections,  returns,  and  qualifications 
of  its  own  members,"  it  would  seem  that  we  are  not  bound  by  the 


FEATHERSTON   VS.    GATE.  127 

Strict  rules  of  evidence  known  to  the  "  common  law."  But  we  are  not 
deciding  that  question.  What  we  are  deciding  is,  that  where  deposi- 
tions are  found  in  the  printed  record,  or  where  they  appear  in  the 
printed  record,  and  no  objection  is  made  to  the  Clerk  of  the  House  or 
to  the  opposite  party,  the  party  failing  to  object  at  the  earliest  oppor- 
tunity, or  at  least  within  reasonable  time,  so  as  to  put  the  opposite 
party  on  notice,  will  be  deemed  to  have  waived  all  question  of  notice, 
especially  where  there  is  no  offer  of  proof  1o  show  a  different  state  of 
facts  than  those  shown  by  the  depositions. 

As  already  shown  by  the  figures  given,  we  are  of  opinion  that  the 
proof  under  the  law  clearly  shows  that  contestant  Peatherston  was 
elected  by  a  majority  of  86  votes. 

The  committee  therefore  report  the  following  resolutions  and  recom- 
mend their  passage : 

Resolved,  That  W.  H.  Gate  was  not  elected  as  a  Representative  to 
the  Fifty-first  Congress,  from  the  First  Congressional  district  of  the 
State  of  Arkansas,  and  is  not  entitled  to  the  seat. 

Resolved,  That  L.  P.  Peatherston  was  duly  elected  aa  a  Representa- 
tive from  the  First  Congressional  district  of  the  State  of  Arkansas  to 
the  Fifty-first  Congress,  and  is  entitled  to  his  seat  as  such. 


VIEWS   OF   THE    MINORITY. 


The  depositions  taken  without  legal  notice  should  not  be  considered. 
The  charges  of  f^raud  are  not  sustained  by  the  evidence. 

H.  Mis.  137 9  129 


VIEWS  OF  THE  MINORITY. 


Mr.  OUTHWAITE,  from  the  Committee  on  Elections,  submits  the  fol- 
lowing as  the  views  of  the  miuoiity: 

The  total  number  of  voters  in  this  district  is,  in  round  numbers,  40,000, 
of- which  25,000  are  whites  and  15,0(i0  negroes.  Twenty-two  thou- 
sand are  Democrats  and  18,000  Republicans.  It  has  been  represented 
in  Congress  tor  the  last  ten  years  by  a  Democrat.  The  Re[)ublicaus 
during  that  time  virtually  conceded  it  to  the  other  party  by  making  a 
nomination  for  Representative  in  Congress  upon  only  two  occasions. 
At  a  more  recent  State  election  for  three  judges  of  the  supreme  court, 
held  April  2,  1889,  the  vote  in  this  Congressional  district  was,  for  the 
leading  Democratic  candidate,  9,801,  and  for  the  leading  Republican 
candidate,  8,021.  The  majority  for  the  Democratic  candidate  was  about 
1,780.  No  one  has  questioned  the  legality  or  fairness  of  this  election, 
nor  has  any  one  claimed  that  there  was  any  fraud  or  intimidation  any- 
where throughout  this  Congressional  district,  though  the  total  vote  cast 
was  not  quite  18,000. 

At  the  November  election  in  1888,  30,000  voters  went  to  the  polls  and 
voted.  On  the  21st  of  that  month  the  governor  of  the  State  of  Arkan- 
sas, in  pursuance  of  law,  made  proclamation,  wherein  it  was  alleged 
that  W.  H.  Cate  received  15,576  votes,  and  L.  P.  Featherston  received 
14,228  votes ;  that  the  former  received  1,348  more  votes  than  the  latter 
for  Representative  in  Congress  from  the  First  Congressional  district  of 
Arkansas.  This  majority  is  conceded  by  the  contestant  to  have  been 
shown  on  the  face  of  the  returns  certified  to  the  governor,  in  his  notice 
of  contest  and  in  his  brief. 

There  are  seventeen  counties  in  the  district,  and  fraud,  mistake,  or 
improper  conduct,  is  charged  in  fifteen  of  them.  No  testimony  is  taken 
or  attempted  to  be  taken  except  in  four.  The  record  shows  that  but 
seventeen  days  of  the  forty  allowed  by  law  (Rev.  Stats.,  sec.  107)  for 
taking  his  testimony  in  chief  were  occupied  by  the  contestant,  and  that 
he  did  not  avail  himself  in  more  than  one  instance  of  that  other  provision 
of  the  law,  that  testimony  in  contested-election  cases  may  be  taken  at 
two  or  more  places  at  the  same  time."  (Rev.  Stat.,  sec.  109.)  No  rea- 
son or  excuse  is  given  by  contestant  for  his  failure  to  attempt  to  prove 
the  allegations  of  his  notice  and  statement  in  some  forty  paragraphs 
concerning  the  election  in  twelve  of  the  fifteen  counties  of  the  district. 
The  fair  inference  is  that  there  was  no  proof  to  be  obtained  to  support 
his  charges  of  fraud  or  misconduct  in  those  twelve  counties. 

As  to  Phillips  County,  there  is  an  agreed  statement  of  facts  (rec, 
pp.  183-4),  admitting  certain  mistakes  and  irregularities  by  which  it  is 
shown  that  in  Hicksville  precinct  the  contestant  is  entitled  to  33  votes 
and  the  contestee  to  15  votes,  which  were  not  returned  to  the  secretary 
of  state  for  them  respectively.  It  is  further  shown  by  said  agreement 
that  in  Lake  Township  contestant  received  127  votes  and  contestee  re- 
ceived bat  10  votes  5  but  that  in  making  the  returns  of  said  election  to 

131 


132  FEATHEESTON   VS.    GATE. 

the  county  clerk,  the  judges  of  said  election  by  mistake  certified  that 
L.  P.  Featherston  received  70  votes  and  W.  H.  Gate  received  67  votes, 
which  error  was  certified  to  tlie  secretary  of  state.  The  correction  of 
these  errors  would  increase  the  vote  of  contestant  90  votes  and  decrease 
the  vote  of  contestee  4.3  votes,  reducing  the  majority  of  contestee  by  132 
votes.  There  is  another  part  of  said  agreement  that  will  be  considered 
farther  on  in  this  report. 

In  Lee  County,  the  testimony  relates  to  the  votes  of  but  two  town- 
ships. Independence  aud  St.  Francis.  Apart  from  the  deposition  of 
W.  T,  Derrick,  who  simply  furnishes,  as  county  clerk,  certain  names 
taken  from  the  lists  as  returned  to  office  of  the  votes  in  Independence, 
Council,  St.  Francis,  and  Walnut  Townships,  there  is  the  testimony  of 
but  one  witness  in  the  record,  which  was  taken  under  notice.  The 
election  at  Independence  precinct  was  conducted  fairly,  without  any 
intimidation  or  disturbance  of  any  kind  whatever.  The  integrity,  good 
character  and  conduct  of  the  officers  of  the  election  is  not  directly 
attacked  anywhere  in  the  record.  It  is  ridiculous  to  think  that  Milton 
Powell's  testimony  should  overthrow  the  sworn  return  of  the  five  elec- 
tion officers.  The  testimony  tends  to  show  there  were  present  also  two 
Fe^^  3ral  supervisors.  The  official  return  from  this  precinct, it  is  claimed 
by  contestant,  gave  contestee  224  votes,  and  contestant  89  votes.  Con- 
testant claims  that  he  received  397  votes  at  this  precinct,  but  that 
through  fraud  or  mistake  only  89  were  returned  as  cast  for  him,  at  the 
same  time  admitting  that  contestee  received  224.  Contestant  also 
averred  that  the  election  officers  were  partisans  of  the  sitting  member. 
To  sustain  his  claim  he  examines  as  a  witness  Milton  Powell. 

Powell  testifies,  after  having  identified  a  Kepublican  ticket,  and  stat- 
ing that  it  was  printed  on  red  paper  with  design  in  blue  on  the  back, 
as  follows : 

Ans.  10.  I  kept  count  of  92  of  those  Eepublican  tickets  that  went  out  of  my  hands. 

Ans,  11.  They  were  Voted. 

Ans.  12.  I  went  with  them  to  the  ballot-box  and  saw  them  put  in. 

He  says : 

Ans.  30.  Rainy  day ;  after  ^t  commenced  it  rained  steadily  the  remainder  of  the 
day. 

Ques.  '^.  Were  you  in  the  rain  or  under  shelter  f — Ans.  Part  of  the  time  under 
shelter  in  front  of  the  court-house,  and  part  of  the  time  in  the  rain ;  I  had  an  um- 
brella. 

The  state  of  the  weather  being  very  bad  that  day  at  this  precinct  and 
throughout  the  district,  as  is  shown  by  other  testimony,  accounts  to 
some  extent  for  the  falling  off  in  the  vote  ;  but  Powell's  testimony  on 
that  subject  here  is  introduced  to  reflect  upon  the  accuracy  of  his  count 
made  under  such  unfavorable  circumstances. 

He  further  testifies  that  he  does  not  know  of  others  voting  for  Mr. 
Featherston,  though  he  gave  out  120  or  125  Eepublican  tickets.  In 
his  answer  No.  13,  he  says  that  something  over  600  votes  were  polled 
there  that  day,  and  [Ans.  14j  that  the  Eepublicaus  have  a  large  ma- 
jority of  this  district. 

In  answer  52  he  gives  his  reason  for  saying  this,  but  in  answer  54  he 
says : 

The  county  elections  for  the  past  six  or  eight  years,  it  has  been  going  Democratic. 

And  I  Ans.  55J : 

It  may  hare  been  ten  years ;  but  I  am  positive  for  six  or  eight  years. 

He  further  testifies  that  Jake  Shaul,  the  chairman  of  the  Eepublican 


PEATHERSTON    VS.    GATE.  133 

committee,  and  Joe  Roberts  and  Samuel  Overton,  who  said  they  were 
Republicans,  worked  for  the  election  of  Mr.  Gate,  the  contestee. 

Quea.  82.  Did  you  see  anything  like  intimidation  or  bulldozing  among  wliite  or 
colored  ? — Ans.  No,  sir. 

Ans.  85.  I  did  not  say  that  there  was  any  fraud  iu  this  township.  I  just  saw  in  the 
papers  where  such  things  were  done  in  other  counties. 

Ques.  86.  Have  you  ever  seen  any  account  in  any  paper,  or  heard  from  any  source 
whatever,  even  an  intimation  of  fraud  in  the  election  in  this  township  in  November 
hist  ? — Ans.  No,  sir  ;  I  have  not,  as  1  know  of. 

The  next  two  questions  and  answers  will  show  what  reliance  is  to  be 
placed  upon  his  previous  testimony  that  something-  over  ()()0  votes  were 
polled  in  the  township  that  day. 

Ques.  87.  About  how  many  Eepublican  votes  were  cast  hero  on  tlie  Gth  of  Novem- 
ber last  ? — Ans.  There  might  have  been  250  or  300  ;  may  be  not  so  many. 

Ques.  88.  How  many  of  that  number  voted  for  Mr.  Featherston?  -Ans.  92,  I  know, 
cast  that  red  ticket  for  him. 

This  witness  also  testifies  that  of  five  candidates  for  governor  since 
he  has  been  a  voter  but  one  Republican  had  carried  that  township, 
and  the  Democrats  the  balance  of  the  time.  He  shows  that  there  was 
considerable  disaffection  among  the  Republicans  ;  that  the  chairman  of 
the  committee  was  actively  at  work  for  the  election  of  Mr.  Oate,  and 
that  this  support  of  the  Democratic  candidate  for  Congress  had  been  so 
pronounced  and  so  effective  that  he  had  recently  before  the  time  the 
witness  was  testifying  been  removed  from  his  position  as  chairman,  and 
another  person  appointed  in  his  stead.  He  names  three  other  promi- 
nent Republicans  who  were  at  these  polls  working  for  the  election  of 
Gate. 

At  the  conclusion  of  his  testimony,  this  witness  was  arrested  for  per- 
jury in  testifying  that  92  votes  were  cast  under  his  immediate  observa- 
tion for  Mr.  Featherston,  in  the  face  of  the  returns  of  the  election  officials. 
It  is  claimed  on  the  part  of  the  contestant  that  his  witnesses  were  thus 
intimidated  and  prevented  from  proving  his  case  in  Lee  Gounty.  It 
will  be  observed  in  the  notice  to  take  depositions  at  the  time  and  place 
where  Milton  Powell  and  W.  T.  Derick  were  examined  that  no  other 
names  are  included  in  the  notice  of  the  witnesses  for  contestant.  There 
is  nothing  in  the  record  to  show  that  at  that  time  and  place  contestant 
proposed  to  examine  other  witnesses  as  to  the  conduct  of  the  election, 
or  at  any  other  time  and  place. 

To  sustain  this  pretext  of  intimidation,  i)reventing  the  taking  of  testi- 
mony, there  was  taken,  without  notice  to  the  contestee,  and  in  another 
to.wnship,  the  testimony  of  two  other  residents  of  Independence  Town- 
ship, Lee  Gounty.  In  the  testimony  of  these  two  men  you  will  not  find 
one  word  relating  to  the  election  or  what  occurred  there  on  that  day. 
The  witnesses  Garter  and  Gox  claimed  that  others  had  been  deterred 
from  testifying  in  the  case  on  account  of  the  arrest  of  Milton  Powell, 
and  that  they  had  apprehensions  if  they  should  so  testify.  They  say 
as  much  as  they  possibly  can  of  this  character,  well  calculated  to  offend 
their  political  opponents,  but  i)resent  no  facts  to  show  that  the  election 
itself  sliould  be  called  in  question.  It  is  therefore  not  necessary  to 
dwell  longer  upon  the  question  as  to  what  shall  be  done  with  the  vote 
in  this  precinct.  It  should  remain  undisturbed  as  it  was  certilied  by 
the  sworn  election  officers  to  the  clerk  of  the  circuit  court  of  that  county, 
and  by  him  certified  to  the  secretary  of  state.  No  testimony  was  offered 
tending  to  show  that  the  officers  of  the  election  were  not  appointed 
according  to  law,  and  the  Republican  Federal  supervisor  of  election, 
although  he  claims  not  to  have  known  of  his  appointment,  was  at  tiie 
election  and  saw  nothing  of  which  he  could  complain. 


134  FEATHERSTON    VS.    GATE. 

The  next  preciuct  to  be  considered  is  St.  Francis  Township,  Lee 
County. 

With  regard  to  the  vote  in  this  township  the  record  does  not  show 
that  any  testimony  was  ever  attempted  to  be  taken  there.  Notice  was 
given  by  oue  of  the  attorneys  of  contestant  that  testimony  would  be 
taken  before  a  notary  named  Leary  at  Terrell  and  Bond's  store  on  Feb- 
ruary 19.  Attorneys  for  both  parties  were  there  at  the  time.  No  wit- 
nesses were  examined.  None  were  called  or  sworn,  and  no  adjourn- 
ment of  the  hearing  was  had.  No  excuse  is  given  anywhere  for  the 
failure  to  do  these  things.  Then  and  there  ended  all  legal  attempts  to 
make  any  proof  concerning  the  vote  in  this  township.  In  open  and 
flagrant  violation  of  the  provisions  of  the  law  with  regard  to  the  taking 
of  testimony  in  such  cases,  the  contestant,  in  the  absence  of  contestee 
and  his  attorneys,  and  without  his  knowledge,  secretly  and  surrepti- 
tiously procured  certain  statements  aj>parently  made  under  oath  before 
un  officer  not  authorized  by  law  to  take  testimony  in  contested  election 
cases. 

One  of  these  witnesses  is  made  to  say  that  at  the  election  on  No- 
vember 6,  at  this  Bt.  Francis  Township,  Mr.  Featberston's  name  was 
on  the  Rej)ublican  ticket,  and  that  all  the  Republicans  he  saw  vote 
voted  the  Republican  ticket.  Another,  in  answer  to  the  question,  "  Did 
all  or  nearly  all  the  Republicans  vote  that  ticket?"  says,  "Nearly  all 
1  seen  voted  that  ticket."  A  third,  in  answer  to  the  same  question,  re- 
plies, "  I  think  so."  This  third  witness,  0.  B.  Brown,  was  the  Repub- 
lican supervisor  of  election,  and  tells  a  queer  story  about  the  ballot-box 
being  two  hats,  and  that  when  the  judges  went  to  dinner  one  of  the 
clerks  took  the  ballots  and  put  them  in  a  large  envelope  and  placed  it 
in  his  pocket  »' and  went  about  one  and  a  half  miles  and  ate  their 
dinner;"  that  the  ballots  were  not  counted  at  the  polling  place,  but  at 
the  residence  of  W.  L.  Blacher,  about  one  mile  and  a  half  away.  Neither 
one  of  these  witnesses  was  asked  a  word  about  the  politics  of  the  judges 
or  clerks  who  thus  misconducted  the  election.  As  the  testimony  of 
G.  T.  Thompson  was  taken  without  notice,  and  adds  to  that  of  the  other 
two  only  that  there  was  none  of  his  party  judges  or  clerks  of  election, 
we  give  it  little  weight.  If  this  vote  were  cast  out  as  attainted  by  fraud 
the  result  would  not  be  changed,  because  the  returns  from  the  precinct 
give  each  candidate  an  equal  number  of  votes.  There  is  no  testimony 
upon  which  to  base  any  different  conclusion.  There  never  was  any  op- 
portunity for  the  contestee  to  take  testimony  contradicting  this  so-called 
testimony.  Surely  it  is  not  seriously  contended  that  any  change  should 
be  made  as  to  the  vote  of  this  township. 

The  contestant  or  his  attorneys,  in  the  case  of  Spring  Creek  Town- 
ship, in  Lee  County,  instead  of  taking  testimony  to  sustain  his  notice 
and  statement  (record,  page  7,  section  XXI),  secretly  and  illegally 
procured  so-called  testimony  to  prove  that  he  was  prevented  from  se- 
curing such  proof  by  intimidalion.  Why  did  he  not  interrogate  the 
very  witnesses  whom  he  had  taken  out  of  their  own  county  on  the  pre- 
text of  this  intimidation  as  to  the  matters  he  had  set  out  in  his  notice 
of  contest.  These  men  claimed  to  have  been  at  the  election,  and  ought 
to  have  been  at  the  election  and  ought  to  have  known  something  of 
the  truth  or  falsity  of  his  allegations.  He  sought  to  prove  by  them 
that  the  negroes  fean-d  to  appear  as  witnesses  becaiise  the  attorney  for 
contestee  had  said,  '•  If  they  swear  lies  here,  I  will  put  them  in  the  pen- 
itentiary."   The  contestant's  attorney,  in  his  brief,  gravely  says: 

It  was  impossible  to  get  a  witness  to  go  on  the  stand  and  testify,  with  the  opeu 
declaration  Ijeiug  made  that  he  would  be  arrested  for  perjury  if  he  testified. 


fEATHEKSTON   VS.    GATE.  135 

He  should  have  said  "testified  falsely."  He  contends  it  was  useless 
to  tell  them  that  the  State  courts  had  no  jurisdiction  of  such  an 
oflFense.  What  a  i)ity  that  he  could  not  persuade  those  whom  he  seemed 
to  have  wished  to  do  so  that  it  was  not  a  crime  to  swear  falsely  in  a 
contested- election  case. 

Smith  TownsMj),  Cross  County. 
In  his  notioe  contestant  makes  the  following  claim  as  to  this  township: 

That  at  the  township  of  Smith,  in  the  county  of  Cross,  m  said  district,  at  anelection 
h^ld  op  the  6th  day  of  November,  1888,1  received  for  Kepresentativeone  hundred  and 
fifteen  (Ho)  votes  and  you  received  ei^jhty-four  (84) ;  that  the  election  otficers  of  said 
townshiy),  who  are  jjartisansof  jonr.s,  throaoh  fraud  or  mistake  leturued  that  you  re- 
ceived eighty-four  (84)  votes  and  that  I  received  fifteen  (15)  votes;  that  the  votes  as 
thus  returned  were  by  the  county  clerk  certified  to  the  secietaiy  of  state  and  by  him 
laid  before  the  governor  and  by  him  counted  in  determining  tlie  uuntber  of  votes  cast 
for  each  of  us  in  said  district.  I  shall  therefore  claim  ou  contest  one  huudred  more 
votes  in  said  township  than  were  returned  for  me. 

He  offers  no  proof  concerning  the  vote  which  was  certified  to  the 
county  clerk  by  the  election  officers  and  by  him  certified  to  the  secre- 
tary of  state. 

There  is  no  evidence  showing  any  reason  why  the  testimony  with  re- 
gard to  this  precinct  should  not  have  been  taken  in  that  i)recinct,  or  at 
least  iu  that  county.  Yet  twenty  nine  men  are  called  into  St.  Francis 
County  as  witnesses  to  testify  concerning  said  election.  Not  one  of 
them  gives  any  evidence  of  frauds  in  the  conduct  of  this  election. 
Nearly  every  one  of  them  is  asked  directly,  "  Were  tlie  judges  of  elec- 
tion in  your  township  your  political  friends  or  enemies?"  Not  one  of 
them  made  any  reply  to  this  question.  Not  one  of  them  says  the  judges 
were  partisans  of  the  contestee.  No  proof  is  given  that  they  were  not 
appointed  according  to  law  from  the  two  parries.  Their  integrity  and 
their  proper  conduct  of  the  election  is  nowhere  assailed  by  direct  evi- 
dence. 

Without  laying  any  foundation  whatever  to  impeach  the  official 
returns  of  these  election  officers,  made  under  oath,  contestant  proceeds 
to  take  the  testimony  of  these  twenty-nine  men  as  to  how  they  voted. 
Only  six  of  them  can  read  or  write.  The  Kepublican  tickets  did  not  have 
Mr.  Featherstou's  name  on  them  at  this  precinct.  Two  of  the  witnesses, 
colored  men,  say  that  they  made  out  the  tickets,  and  wrote  Feather- 
stou's name  on  for  the  others.  There  is  a  suspicious  uniformity  in  the 
answers  of  about  twenty  of  tnem  when  the  question  submitted  to  them 
was  whether  they  voted  for  Cate  or  Featherston.  The  answer  generally 
ran:  "Featherston.  Harrison  for  President."  Itislikean  admission 
that  tliey  did  not  actually  recollect  having  voted  for  Featherston,  or 
did  not  have  much  interest  in  his  election. 

One  of  them  saying  he  could  read  a  little,  and  saw  Featherstou's 
name  on  his  ticket,  being  shown  W.  H.  Gate's  name,  called  it  "  Feather- 
ston." Another  said  he  <lid  not  vote  for  Congressman,  but  for  Harri- 
son and  Morton.  A  third  answered,  "I  said  I  voted  for  Gates."  No 
testimony  is  given  to  show  that  contestee  did  not  receive  the  full  num- 
ber of  votes  retnrned  for  him.  The  vote  of  this  township  should  not 
be  disturbed  upon  such  a  shallow  showing. 

Blackjish  Township,  St.  Francis  County. 

The  notice  of  contestant  claims  that  at  this  township,  by  the  fraudu- 
lent, illegal,  and  unlawful  conduct  of  the  judges  of  election  of  said 
township,  53  voters  of  said  township  attended  at  the  place  where  such 


136  FEATHERSTON    VS.    GATE. 

olfction  was  to  be  lield,  at  the  proper  time  for  the  purpose  and  with  the 
intention  of  voting  for  him,  but  were  prevented  from  doing  so  by  the 
fraudulent,  illegal,  and  unlawful  conduct  of  said  judges  of  election. 

It  will  be  observed  that  contestant  does  not  claim  that  the  election 
oificers  at  this  precinct  were  partisans  of  coutestee.  The  proof  shows 
that  two  of  the  judges  were  Republicans,  Mr.  Worley,  who  was  sick  and 
has  since  died,  and  Huffin  Carr,  a  negro.  The  ballot-box  there  was 
in  the  hands  of  a  Republican  Federal  supervisor,  a  negro,  named  Font 
[or  Fountain]  Young,  and  he  and  Carr  kept  the  ballot-box  all  day. 
Worley  said  his  wife  was  sick  and  he  could  not  leave  home.  The  roof 
had  been  taken  off  the  house  where  the  election  was  to  have  been  held, 
some  weeks  before,  to  be  repaired,  and  had  not  been  replaced.  No  other 
house  near  could  be  had  in  which  to  hold  the  election.  Two  are  men- 
tioned, in  one  of  which  there  was  cotton,  and  the  owner  objected  to 
having  an  election  in  his  cotton  store-house,  and  the  other  was  a  mere 
shelter  with  no  floor. 

Mr.  James,  the  Democratic  judge,  was  in  bad  health  and  could  not 
sit  in  the  rain.  It  would  have  been  impossible  to  write  the  names  of 
voters  on  the  poll -books,  keep  tally-sheets,  or,  in  short,  conduct  an  elec- 
tion, and  there  was  no  force,  threats,  violence,  or  intimidation  of  any 
kind  used  or  hinted  at  to  prevent  any  one  who  might  have  wished  to 
hold  an  election  at  Blackfish  that  day.  Mr.  James  told  one  of  the 
Republican  judges  to  get  his  judges  and  clerks  and  hold  an  election  if 
he  wanted  to. 

Contestant  calls  some  twenty  witnesses.  They  differ  materially  in 
their  evidence  as  to  the  number  of  voters  at  the  polls,  and  their  pur- 
pose. From  25  to  40  voters  were  there,  some  15  of  whom  were  whites 
and  Democrats.  One  witness  says,  '•  I  cbunted  35  colored  people  that 
were  here  and  coming.  I  counted  20  right  here  at  the  house."  "  There 
was  about  30  people,  pretty  much  all  colored  people,"  says  another.  In 
reply  to  the  question,  "  If  you  did  not  vote,  why  did  you  not  vote  ?" 
their  answers  ran  about  as  follows : 

"I  come  here  to  the  school-house  to  vote,  but  the  judges  would  not 
serve."  One  witness  said,  "  I  started  to  the  school-house.  It  was  rain- 
ing hard.  I  could  not  get  there.  I  am  a  Republican."  Another  said, 
"  1  started  but  could  not  get  here.  I  was  walking  and  it  was  raining." 
Still  another  said,  "  I  understood  a  few  days  before  that  the  judges  re- 
fused to  serve,  and  thought  there  was  no  use  to  go."  No  one  else  sus- 
tains this  notion. 

Here  are  some  specimen  answers  to  the  question : 

For  whom  would  you  hare  voted,  Gate  or  Foatherston  ? 

For  Harrison  and  the  Republican  ticket  and  whatever  was. 

I  meant  to  vote  the  Republican  ticket. 

Most  of  the  colored  people  said  they  were  going  to  vote  the  Republican  ticket.  I 
wanted  to  vote  for  Featherston  for  Congress  and  Harrison  for  President. 

I  am  a  Republican  and  wanted  to  vote  for  Harrison. 

I  ara  a  Republican.     I  do  not  know  who  they  were  going  to  vote  for  for  Gongress. 

I  heard  some  say  they  wanted  to  vote  for  Harrison,  and  some  say  they  wanted  to 
vote  for  Cleveland.  Pretty  well  all  of  them  said  they  would  vote  for  Harrison.  There 
was  two  or  three  colored  people  said  they  would  vote  for  Cleveland. 

(See  record,  from  page  05  to  page  76). 

These  answers  are  significant  in  the  frequent  omission  of  Mr.  Feath- 
erston's  name,  when  it  is  know^n  that  there  was  a  Republican  candi- 
date for  Congress  voted  for  in  this  contest  of  the  name  of  W.  R.  Bar- 
rett. It  was  asserted  in  the  committee-room  by  Mr.  Cate,  in  the  pres- 
ence of  Mr.  Featherston,  and  not  denied,  that  he  (Featherston)  was 
a  Democrat  two  years  before  this  time,  and  had  been  previous  thereto. 


FEATHERSTON    VS     CATE.  137 

Is  it  not  absurd  to  talk  of  sust^iining  the  proposition  of  the  contestant 
with  regard,  to  the  Tote  of  this  township  ? 

Attention  is  next  directed  to  Frank  Township,  St.  Francis  County, 
where  contestant  makes  an  elaborate  and  desperate  efibrt  to  overthrow 
the  returns  of  the  election  officers.  In  his  notice,  speaking  of  this 
township,  he  says : 

I  received  271  and  you  received  129,  but  the  election  officers  of  said  township,  who 
are  jiartisans  of  yours,  through  mistake,  or  fraud,  or  otherwise,  returned  that  you 
received  2(i9  votes  and  that  I  received  131. 

Contestee  brings  as  witnesses  the  judges  and  clerks  of  election,  who 
account  for  the  ballot-box  during  the  entire  period  of  the  election,  ex- 
plain minutely  how  the  election  was  conducted  and  returns  made,  etc. 
(Record,  pp.  25G,  259,  and  76.) 

He  brings  the  Democratic  supervisor,  Mr.  Davis,  who  testifies  (p.  254) 
to  the  reguhirity  of  the  election.  He  brings  Andrew  McGlown,  the  Fed- 
eral supervisor  for  the  Eepublican  party,  himself  a  Republican,  who 
shows  by  his  evidence  that  he  was  watchful  and  diligent  in  the  dis- 
charge of  his  duty;  that  the  box  was  not  out  of  his  sight  but  twice  for 
not  exceeding  three-quarters  of  an  hour,  and  then  it  was  locked  and  he 
had  the  key ;  that  when  they  went  to  dinner  the  Democratic  supervisor 
had  the  box  and  he  had  the  key ;  at  supper  he  had  the  box  and  Mr. 
Davis  the  key.  While  the  Democratic  supervisor  had  tlie  box  at  din- 
ner it  was  locked  in  a  room,  and  Mr.  McDonald,  one  of  the  judges  of 
election,  had  the  key  of  that  room.  There  was  no  chance  with  the  Dem- 
ocratic officials  to  tamper  with  the  ballots  by  taking  out  those  which 
had  been  deposited  and  numbered  to  corresi)ond  with  the  name  of  the 
voter  and  substitute  others  properly  marked  in  their  places.  To  have 
done  this  it  would  have  been  necessary  to  break  the  lock,  which  was 
not  done,  or  to  have  had  another  key  made. 

This  election  was  held  four  miles  in  the  country,  where  there  was  no 
locksmith  or  gunsmith  to  assist  in  perpetrating  such  a  fraud.  Contest- 
ant introduced  proof  tending  to  show  that  it  was  easy  to  duplicate  a 
key  bj'  having  one  made  in  a  few  minutes  on  the  day  of  the  taking  of 
testimony.  It  may  be  sufficient  to  say  that  there  was  no  testimony 
tending  to  show  that  any  such  fraud  had  been  perpetrated  upon  this 
ballot.  The  testimony  shows  no  opportunity  and  no  suspicious  circum- 
stances indicating  any  design  upon  the  part  of  the  officers  of  election. 
The  regularly  appointed  officers  for  this  precinct  were  not  present  at 
the  time  to  open  the  polls  and  did  not  qualify,  so  that  officers  were 
chosen  from  the  citizens  and  by  them.  No  testimony  is  offered  as  to 
the  facts  of  their  election,  showing  that  they  were  not  chosen  properly 
and  legally,  although  it  is  claimed  that  the  judges  were  all  Democrats. 
The  Republican  negro  who  had  been  appointed  did  not  come  until  it 
was  late. 

The  election  law  of  the  State  of  Arkansas  is  as  follows  : 

If  the  court  shall  fail  to  ♦  *  *  appoint  judges  of  election,  or  those  appointed 
fail  to  act,  the  voters,  when  assembled,  may  appoint  the  judges,  who  shall,  in  all  re- 
spects, perform  the  duties  of  judges  of  election  as  required  by  law.  (Mansfield's 
Digest  of  Laws  of  Arkansas,  section  2650.) 

And  it  is  further  provided  that — 

The  judges  of  election  appointed  by  the  county  court,  or  chosen  hy  the  aaserti- 
hled  electors  under  the  provisions  of  this  act,  shall,  if  practicable,  be  from  differ- 
ent political  parties,  so  that  each  party  may  be  represented,  and  they  shall,  in  addition, 
'    *    *    be  able  to  read  and  write. 


138  FEATHEESTON    VS.    GATE. 

McGlow  testifies  (page  76) : 

Mr.  Jack  Davis  called  attention  of  the  judges  and  clerks,  -who  were  there,  that  it 
was  right  as  the  other  judges  and  clerks  -  *  *  toelect  or  appoint  J lulges  in  their 
places,  and  they  went  ahead  and  did  so.  There  were  only  Mr.  Hill,  Mr.  McDaniel, 
and  Mr.  Grey,  and  Mr.  Davis,  and  a  few  other  men  were  all  that  were  present  at  this. 
None  of  the  judges  appointed  by  the  county  judge  were  present.  Jack  Bruyn,  a 
colored  man,  was  one  of  the  regularly  appointed  judges.  I  don't  know  what  time  he 
came. 

If  there  had  been  Republicans  present  qualified  to  be  judges  would 
not  this  witness  have  so  testified  ?  None  were  present — none  could  be 
chosen.  No  violation  of  law  is  proven.  It  was  shown  that  the  box 
was  out  of  the  sight  of  one  of  the  federal  supervisors  about  three- 
quarters  of  an  hour  at  noon  and  again  at  supper  time ;  but  never  out 
of  sight  of  both  federal  supervisors 

McGIown,  this  Republican  negro  Federal  supervisor,  testifies  that  he 
saw  the  ballots  as  they  were  handed  to  the  judges  and  deposited  in  the 
box  as  they  were  received  ;  that  he  did  not  change  or  alter  the  ballot  of 
any  elector,  and  did  not  suffer  his  associates  to  do  it  as  far  as  he  knows ; 
that  the  ballot-box  was  in  his  sight  all  the  time  the  votes  were  being 
deposited,  and  also  when  counting  out;  that  he  examined  them  as  they 
came  out  of  the  box;  they  were  counted  correctly;  he  supervi.sed  the 
count  of  the  ballots  by  the  clerk  and  they  were  correctly  tallied;  that 
the  election  was  conducted  fairly  and  imp;irtially  so  far  as  his  kiiowl- 
edge  about  it  was.  The  number  of  ballots  taken  from  the  ballot-box 
corresponded  exactly  with  the  number  of  names  upon  the  poll-books. 
He  never  discovered  any  evidence  of  the  ballot  box  having  been  tam- 
pered with  when  out  of  his  sight  and  never  saw  but  one  key  and  did  not 
know  of  any  other.  The  testimony  of  the  two  white  judges  sustains  the 
fairness,  impartiality,  honesty,  and  accuracy  of  the  whole  election  pro- 
ceedings at  this  precinct  on  ISovember  6,  1888. 

The  contestant  was  present  by  counsel  and  cross-examined  the  wit- 
nesses when  this  testimony  was  taken.  Nowhere  and  at  no  time  has 
he  offered  any  testimony  rending  to  controvert  the  testimony  of  these 
election  ofl&cers  upon  the  facts  to  which  they  made  oath.  In  contest- 
ant's brief,  page  8,  we  find  the  followiug  concerning  this  precinct : 

We  do  not  claim  that  the  box  shall  be  thrown  out  or  any  of  the  voters  disfranchised. 
What  we  claim  is  that  the  ballot-box  was  exposed,  and  that  the  return  does  not  show 
the  true  vote,  and  that  in  such  a  case  each  party  can  only  have  the  number  of  votes 
he  proves  up.  We  concede  that  poll-ijooks  duly  certified  and  returued  are  prima 
facie  evidence  of  the  truth  of  their  contents,  and  that  the  burden  is  upon  the  con- 
testant to  show  that  they  do  not  speak  the  truth. 

With  this  burden  upon  himself  to  destroy  the  validity  of  this  elec- 
tion, the  contestant  has  taken  the  testimony  of  195  men  whom  he  claims 
to  have  voted  at  that  election  and  for  him,  although  the  preliminarj' 
proof  has  not  made  a  shadow  of  a  case  for  such  a  course. 

The  county  clerk  of  this  county — a  Republican — was  called  and  ex- 
amined, February  7,  1889.  In  his  custody  were  the  ballots  of  this  elec- 
tion, each  one  numbered  to  correspond  with  the  number  of  the  voter  on 
the  poll-book.  They  were  the  primary  and  best  evidence  as  to  how  the 
xotdT  voted.  No  examination  was  made  of  this  testimony,  which  had 
been  in  the  safe-keeping  of  one  of  the  ofiicial  partisans  of  contestant 
from  the  day  of  election.  If  the  ballot-box  had  been  opened  it  would 
have  disclosed  one  of  two  things,  that  claim  of  contestant  was  ground- 
less, or  that  the  judges  had  made  a  fraudulent  return.  Coutestee  could 
not  safely  examine  this  witness  of  the  contestant. 

It  should  be  borne  in  mind  that  in  this  precinct  and  the  district  there 
were  two  elections  in  the  fall  of  1888,  one  in  September^  and  this  one 
under  examination  in  November,  and  that  the  testimony  of  these  wit- 


FEATHERSTON    VS.    CATE.  139 

nesses  as  to  how  they  voted,  from  whom  they  received  their  tickets, 
and  what  kind  of  tickets  they  voted,  is  taken  in  February,  1889.  One 
of  the  witnesses,  Andy  Starks,  says: 

I  am  the  man  wlio  issued  all  the  tickets.  I  had  one  man  to  help  nie  issue.  I 
can't  read  to  amount  to  auy thing-;  can't  write.  I  issued  the  white  tickets  before 
dinner  and  the  red  ones  after  dinner. 

The  voters  in  their  testimony  tell  of  getting  several  different  colored 
tickets  from  at  least  ten  other  persons.  Many  of  the  men  whose  names 
are  not  on  the  poll-books  testify  to  having  voted  for  a  candidate  for 
Congress.  Some  swear  that  others  voted  that  day  whose  names  can 
not  be  found  on  tlie  poll  books.  One  says  he  did  not  vote;  yet  he  is 
recorded  on  the  poll-books  of  that  day.  Some  swear  thej"  voted  a  red 
ticket  in  tlie  morning,  when  none  were  j)resent  to  be  voted,  and  one 
that  he  voted  a  blue  llepublican  ticket  before  noon.  Some  say  they 
voted  green  tickets;  some  yellow.  One  was  positive  that  his  Republi- 
can ticket  was  green  or  blue,  and  not  white  or  red.  More  than  one 
gave  names  of  candidates  as  being  on  their  ticket  that  were  not  upon 
either  the  Republican  or  Fusion  ticket  in  November,  but  may  have 
been  on  the  county  ticket  in  September.  Some  could  not  tell  whether 
they  voted  for  a  Congressman  at  the  September  or  the  November  elec- 
tion, or  at  some  other  time,  and  some  did  not  know  who  they  voted  for 
for  President.  The  names  of  many  who  swear  they  voted  are  not 
found  on  the  poll-book. 

One  witness  testiiies  that  the  Democratic  ticket  was  blue  on  both 
sides.  Several  of  the  voters  say  that  that  was  the  color  of  the  tickets 
they  got  from  J.  U.  Jackson  that  day  and  voted  them.  Six  of  the  men 
fix  tbe  time  at  which  they  voted  for  Featherston  iu  a  dili'ereut  mouth 
from  November. 

These  facts  are  mentioned  to  show  that  very  much  of  the  evidence  is 
weak,  contradictory,  and  uncertain.  In  some  instances,  what  the  wit- 
nesses should  say  or  do  wh<^n  examined  appears  to  have  been  put  into 
their  minds  just  before  they  were  called.  Clearly  is  it  shown  that  from 
the  lapse  of  time  many  of  the  witnesses  confused  the  September  an<l 
November  elections,  and  were  not  able  to  recall  correctly  whether  they 
attended  one  or  both,  and  what  occurred  at  such  time  or  times  as  they 
were  there. 

■It  is  impossible  from  a  careful  examination  of  the  testimony  to  show 
that  Featherston  received  a  single  vote  more  than  was  certified  for 
him  at  that  precinct,  to  wit,  I'^l.  No  pretext  for  disturbing  the  re- 
turns from  this  township  exists. 

Before  passing  from  this  county,  as  reflecting  upon  the  fairness  of  the 
returns,  it  may  be  of  value  to  notice  the  figures  for  the  September  elec- 
tion for  governor,  and  compare  the  votes  for  President  on  the  0th  of 
November  with  the  votes  for  Congressman.  For  governor,  September 
election,  St.  Francis  County,  James  Eagle,  Democrat,  received  960 
votes;  C.  N.  Norwood,  Fusion;  received  1 ,570  votes,  and  for  President, 
November  election,  St.  Francis  County,  Grover  Cleveland,  Democrat, 
received  838  votes ;  Benjamin  Harrison,  Republican,  received  923  votes ; 
Streator,  Union  Labor,  received  248  votes.  The  total  vote  of  both 
candidates  for  President  opposed  to  the  Democratic  vote  is  1,171.  For 
Congressman,  November  election,  St.  Francis  County,  W.  H.  Cate, 
Democrat,  received  762  votes;  L.  P.  Featherston,  Republican  or 
Fusion,  received  1,231  votes.  Cate  received  about  20  per  cent,  less 
votes  than  Eagle  did  in  September,  and  Featherston  about  20  per  cent, 
less  than.  Norwood  did.  Cate  received  76  votes  less  than  Cleveland  did 
the  6th  of  November,  and  Featherston  60  more  than  both  Harrison 


140 


FEATHERSTON   VS.    GATE. 


aud  Streator  combined.  Remarkably  bad  stormy  weather  in  that  re- 
gion accounts  for  the  falling  oil"  of  the  total  vote  in  November  as  com- 
pared with  that  in  September. 

The  last  county  to  be  considered  is  Crittenden.  In  this  county,  at 
the  September  election  for  governor,  Eagle,  Democrat,  received  1,328 
votes;  Xoiwood,  Fusion,  received  1,579  votes.  At  the  November  elec- 
tion for  President,  Cleveland,  Democrat,  received  310  votes ;  Harrison, 
Eepublican,  received  1,055  votes ;  total,  1,365  votes.  For  Congressman, 
Gate,  Democrat,  received  316 ;  Featherstone,  Fushion-Republican,  869 
votes ;  Barrett,  republican,  169  votes  ;  total,  1,354  votes,  but  11  less  than 
were  cast  for  President. 

The  contestant,  to  sustain  the  ninth,  tenth,  eleventh,  twelfth,  thir- 
teenth, and  fourteenth  paragraphs  of  his  notice,  introduces  the  follow- 
ing exhibit,  which  is  found  on  page  228  of  the  record : 

[Exhibit  A  to  deposition  of  W.  B.  Eldridjre.] 

Abstract  of  poll-hooka  of  election  held  on  the  6th  day  of  November,  1888,  for  Representa- 
tive in  Congress  for  the '2d  Congressional  district  of  the  State  of  Arkansas,  in  Critten- 
den County,  at  the  follmiing  precincts  or  voting  places,  and  not  certified  to  the  secretary 
of  the  state  on  account  of  irregularities  in  the  poll-books  appearing  therein,  that  the 
judges  and  clei-ks  of  said  election  were  not  sworn  as  the  law  directs. 


Total  vote. 

W.H.Cate. 

L.  P.  Feath- 
ers ton. 

147 
180 
208 
90 
45 
45 
64 

14 
49 

4 
15 

133 

WalDut  Grove ...... 

137 

Bradley 

195 

Edmou'dsoa 

f5 

Riccvillo 

45 

Gilmoro 

7 
61 

35 

Scanlin 

•> 

788 

150 

62J 

clerk's  certificate  to  transcript. 

State  of  Arkansas,  County  of  Crittenden : 

I,  Sam'.  Keel,  clerk  of  the  circuit  conrt  within  and  for  the  county  and  State  afore- 
said, do  hereby  certify  that  the  annexed  aud  foregoing  pages  contain  a  true  and  com- 
plete transcript  of  the  above  as  therein  set  forth,  and  as  the  same  appears  of  record 
in  ray  office  at  Marion,  Crittenden  County,  Arkansas. 

Witness  my  hand  and  official  seal  this  2ist  day  of  February,  1889. 

[seal.]  Sam'l  Keel,  Clerk. 

,  Z>.  C. 

In  regard  to  this  contention,  and  in  order  to  arrive  at  a  proper  under- 
standing of  these  returns  and  that  justice  might  be  done  all  parties,  the 
contestee,  on  the  16th  day  of  January,  in  Little  Kock,  in  contestant's 
room,  i>roposed  that  in  order  that  there  should  be  no  trouble  in  this 
matter  they  would  both  go  in  person  to  Marion,  thecounty  seat,  and  get 
thereof,  to  be  submitted  as  proof  in  this  case.  It  was  so  determined, 
all  the  facts  in  relation  to  these  returns,  and  make  an  agreed  statement 
and  the  Thursday  week  following  was  fixed  upon  as  the  day  to  meet  at 
Marion.  Contestee  went  on  according  to  the  agreement ;  contestant 
was  not  there. 

While  the  certificate  of  the  county  clerk  indicates  that  he  did  not 
certify  to  the  secretary  of  state  as  part  of  the  vote  for  Representa- 
tive in  Congress  the  votes  from  these  seven  precincts  in  this  county, 
yet  we  can  not  concur  with  the  committee  that  there  is  sufiScient  legal 
proof  to  warrant  these  votes  being  added  to  the  respective  votes  for 
contestant  and  contestee  in  these  counties.  We  shall  consider  this 
matter  again  farther  on. 


FEATHERSTON    VS.    CATE.  141 

Contestant  alleges  in  his  notice  with  regard  to  one  of  these  precincts, 
viz,  Scaulan,  that  163  legal  voters  of  said  precinct  went  to  said  precinct 
at  the  proper  time  for  the  purpose  of  voting  for  him  for  Representative 
and  were  prevented  from  so  doing  by  the  unlawful  and  illegal  conduct 
of  said  judges  of  election  and  by  intimidation  of  your  partisans.  The 
so-called  testimony  of  these  men  was  taken  in  Memphis,  Tenn.,  without 
notice  to  contestee  and  is  offered  to  maintain  this  charge.  We  shall 
discuss  the  taking  of  this  alleged  testimony  along  with  more  of  the 
same  kind  hereafter.  Let  it  now  be  examined  and  applied  as  if  it  were 
deserving  of  consideration. 

Willis  McGee  (pages  225  and  226  of  the  record). 

Q.  What  is  the  usual  vote  in  your  township  ? — A.  About  125. 

Q.  Hovr  many  Democrats? — A.  About  '25  to  30. 

Q.  What  is  the  usual  Republican  vote  ? — A.  From  100  to  125, 

Q.  How  many  Republican  votes  were  cast  ? — A.  No,  sir ;  I  do  not  know  exactly  how 
mau^-  were  cast.     I  seen  about  nine  or  ten. 

Q.  Please  make  a  list  of  those  names  and  file  it  as  Exhibit  B  to  your  deposition. — 
A.  I  do  so. 

Q.  Were  a  good  many  men  out  at  the  polls  that  day — Republicans? — A.  Right 
smart,  and  it  was  raining  hard  and  a  heap  did  not  come. 

Q.  Was  there  many  there  didn't  vote  ? — A.  Yes,  sir. 

Q.  What  was  the  reason  ? — A.  The  boys  said  it  wasn't  no  use  voting;  that  they  do 
just  as  they  choose,  and  they  didn't  have  no  show  there.  They  said  they  all  voted 
Republican  before,  solid  out  through,  and  they  beat  them  at  Scanlan's. 

It  may  be  noted  here  that  this  witness  testifies — 

First.  To  only  a  small  number  voting,  and  says  he  filed  a  list  of 
their  names.  This  he  does  not  do  for  some  good  reason  best  known  to 
himself  or  those  concocting  this  testimony. 

Second.  It  was  raining  and  a  heap  of  Eepublicans  did  not  come  to 
the  polls. 

Third.  A  good  many  of  them  did  not  vote.  He  does  not  even  say  he 
himself  voted. 

Finally  he  does  not  utter  a  word  to  show  there  was  any  intimi- 
dation to  prevent  any  one  from  voting. 

E.  B.  Fields  (R.,  pp.  216, 216)  says  about  the  same  as  to  the  voters  of 
the  precinct. 

Q.  Do  you  know  whether  there  were  any  Republican  votes  cast  there  that  day  ? — 
A.  Yes,  sir;  I  give  several  of  them  tickets  and  they  sealed  them  up  and  said  they 
was  going  to  vote  them  just  like  they  was ;  didn't  open  them  at  all. 

Q.  How  many  did  you  give  tickets  to? — A.  lam  certain  I  giv(!  four.  I  give  tickets 
to  several,  but  I  did  not  know  what  they  did  with  them  ;  but  I  give  tickets  to  some 
and  they  held  them  in  their  hands  like  they  were  afraid  they  would  get  away  from 
them. 

When  asked: 

Q.  Were  there  any  disturbances  or  rows  there  in  the  Presidential  election  ? — A. 
No,  sir;  it  was  a  kind  a  of  day  like  this.  It  was  raining  all  day  most.  Didn't  have 
no  fuss  that  day. 

No  intimidation  or  fraud  is  shown  by  this  witness.  On  the  contrary, 
he  denies  positively  the  one  and  does  not  touch  on  the  other. 

John  Johnson,  also  of  Scanlan,  is  called  to  this  secret  Memphis  ex- 
amination, and  his  strongest  statements  are  given  below : 

Q.  You  say  you  were  at  the  Presidential  election? 

He  had  said  no  such  thing,  but  answers : 

Yes,  sir ;  Pm  at  all  them,  but  then  I  was  there  anyhow  at  that  one  expressly. 
Q.  Was  there  some  people  come  out  to  the  polls  that  day  that  didn't  vote  ?~A. 
They  wanted  to  vote  but  was  afraid  to. 
Q.  How  many  people  voted  there  ? — A.  I  counted  off  73,  and  they  was  voting  on. 


142  FEATHERSTON   VS.    GATE. 

I  didu't  go  away,  but  then  I  weut  down  the  river  a  little  piece  and  sot  around.  But 
everybody  that  talked  to  me  after  I  come  up  said  they  was  voting  Republican. 

Q.  You  say  they  voted  a  Republican  ticket  ? — A.  Yes,  sir. 

Q.  How  many  did  you  see  vote  that  ticket  that  day  at  the  polls? — A.  About  73;  I 
think  7:3.     I  counted  them  particularly. 

Q.  Did  you  have  the  tickets  iu  your  hand  ? — A.  Yes,  sir;  I  had  about  12.')  or  130  of 
them — 150,  an*  1  reckon  I  gave  out  about  30  or  40  of  them  that  day  and  saw  75  of 
them  voted,  and  stood  and  looked  at  them  and  saw  pretty  near  every  man  that  voted 
that  day.     I  read  the  ticket  and  knew  I  was  voting  for  Harrison. 

Q.  Who  did  you  think  you  was  voting  for  Congressman? — A.  I  just  voted  the 
straight  ticket. 

Q.  Then  this  is  exactly  the  ticket  you  voted  ? — A.  Yes,  sir. 

Q.  And  this  is  exactly  the  ticiiet  you  saw  voted  by  73  other  men? — A.  Yes,  sir. 

Q.  If  the  people  in  your  township  were  voted  properly  how  many  of  them  would 
turn  out  and  swear  to  have  voted  that  same  ticket  that  you'  make  an  exhibit  of 
there? — A.  35  or  40  or  45. 

Q.  There  is  how  many  if  they  were  properly  protected?  You  issued  73  yourself, 
you  say  ? — A.  I  didn't  issue  that  many,  but  I  saw  that  many  polled  from  other  hands 
that  was  handed  round  and  counted  them  every  one. 

Q.  Is  there  any  feeling  of  uneasiness  in  your  community  now  about  their  election 
matters? — A.  No,  sir  ;  I  don't  hear  anything  more  than  just  common. 

Mr.  Johnson  also  says  he  can  furnish  a  list  of  those  who  voted  the 
Eepublican  ticket,  but  he  never  does  it.  To  set  aside  the  election  in 
this  precinct  upon  this  testimony  would  be  an  outrage  upon  the  right 
of  elections  by  the  people.  The  testimony  utterly  fails  to  sustain  the 
claim  of  contestant  in  whole  or  in  the  slightest  jDart. 

Gat  Island  Precinct,  Crittenden  County. 

Contestant  claims  that  he  received  183  votes  in  this  precinct  and  con- 
testee  only  15,  and  that  the  election  officers,  through  fraud  or  mistake, 
returned  that  he,  contestant,  received  only  120  and  contestee  88.  George 
Hendley,  examined  somewhere  iu  Memphis  without  notice  to  the  con- 
testant, is  made  to  say  about  as  follows : 

We  have  usually  voted  from  196  to 200  alway  in  our  township;  about  14  to  15  Dem- 
ocrats and  from  1«0  to  182  and  3  and  4  and  so  on  Republicans.  Nearly  a  full  vote  out. 
Not  quite  as  many  voted  in  the  county  election.  No  Republican,  to  hi.s  knowledges 
scratched  the  ticket  and  none  to  his  knowing  voted  any  other  than  the  Republican 
ticket.  All  told  him  they  would  vote  the  Republican  ticket.  There  have  been  con- 
siderable uneasiness  since  July.  The  people  of  our  community  are  willing  to  tell 
fully  and  freely  all  they  know  and  other  portions  of  the  county  seem  to  be  the  same 
way  willing  to  tell  what  they  have  done  in  relat  ion  to  voting  in  the  county  and  how 
they  have  voted.  The  judges  iu  our  township  were  all  Democrats.  We  could  not 
see  the  box  and  don't  know  whether  the  judges  were  sworn  or  not. 

Robert  Abernethy  says  he  voted  at  the  national  election. 

Don't  know  how  many  colored  votes  there  are  in  the  township  ;  there  are  about  25 
white  voters,  the  rest  are  colored.  General  Republicans — nine-tenths  of  them  were 
Republicans.  I  heard  them  say  prior  to  the  time  they  would  vote  that  ticket  under 
all  hazards.  They  come  through  the  rain  and  got  their  ticket.  There  was  no  other 
exhibited  publicly.     Voted  the  ticket  and  saw  it  put  in  the  box. 

Nothing  more  is  offered  to  afford  as  a  pretext  for  sustaining  the  claim 
of  the  contestant  as  to  this  precinct. 

Ferguson  Toivnship,  Crittenden  County. 

Contestant  claims  that  109  legal  voters  went  to  the  voting  place  in 
said  precinct  for  the  purpose  and  with  the  intention  of  voting  for  him 
for  Representative  and  were  prevented  from  doing  so  by  the  unlawful 
conduct  of  the  judges  of  election,  who  were  partisans  of  contestee,  and 
by  intimidation  of  contestee's  partisans. 


FEATHERSTON    VS.    GATE.  143 

Thomas  Foster  (colored),  examined  in  Memphis  without  notice,  says 
his  usual  voting  place  is  Ferguson  precinct. 

Judges  of  election  at  State  election  supposed  to  be  Democrats.  Republican  ma- 
jority increasing  generally  about  120  to  125  off  and  on  all  day.  About  100  to  my  know- 
ing came  there  tor  the  purpose  of  voting  and  the  polls  not  being  open  they  could  not 
vote.  They  went  off  elsewhere  to  another  precinct  to  vote.  There  fire  about  6  or  8 
Democratic  votes  in  the  township.  I  don't  know  the  reason  for  not  opening  the  polls. 
Six  of  the  Winchester  crowd  came  down  there  once  during  the  fall  and  took  charge  of 
two  men  and  put  them  under  bonds  for  their  appearance  of  the  circuit  court,  Jan- 
uary term.  I  don't  think  the  citizens  of  the  neighborhood  would  be  perfectly  satis- 
fied to  turn  out  and  testify  under  the  circumstances  that  exist  there  now.  I  don't 
know  about  the  safe  part.  They  may  be  perfectly  safe  in  doing  so,  but  I  doubt 
whether  they'd  be  satisfied  to  do  so. 

E.  S.  Bushing  (colored),  examined  at  Memphis  without  notice,  lives 
at  Jones's. 

Q.  Did  you  vote  at  the  last  national  election  ? — A.  No,  sir ;  wouldn't  let  me  vote ; 
said  I  didn't  live  in  that  precinct. 

Q.  Your  vote  was  challenged  then? — A.  Yes,  sir. 

Q.  Was  the  election  at  your  regular  voting  place  ? — A.  Wa'nt  held ;  don't  know 
why.  All  of  the  voters  in  the  precinct  was  Republicans  but  about  6.  Judges  at 
State  election  were  Democrats.  I  was  supervisor,  and  after  I  was  notified  that  I 
was  supervisor  I  went  to  the  polls  in  order  to  know  the  reason  or  see  that  there  was 
an  election  held  there.  I  was  appointed  by  the  proper  authorities,  and  went  there 
for  the  purpose  of  having  some  kind  of  an  election.  No  judges  came  and  there  was 
no  election  held. 

Q.  When  you  found  the  polls  were  not  open  you  went  to  Jones'  for  the  purpose  of 
voting? — A.  Yes,  sir. 

Q.  And  there  you  were  denied  the  right  to  vote  ? — A.  Yes,  sir ;  none  of  us  voted 
at  all. 

Q.  Were  there  any  poll-books  or  a  ballot-box  furnished  to  any  one  that,  you  know 
of  in  Fergusson  precinct  ? — A,  There  was  a  ballot-box  sent  to  me  at  1  o'clock  the 
same  day.  It  was  about  1  o'clock.  I  was  in  my  store;  had  a  clock  in  there  and  the 
ballot-box  come  there.  The  fellow  came ;  he  looked  like  he  came  in  haste.  He  come 
there  with  the  ballot-box  and  poll-books  and  everything.  Says,  "  1  want  you  to  hold 
election  at  Fergusson's."  I  says  "I  aint  the  judges."  "  Well,"  he  says,  "you  are  ap- 
pointed as  supervisor."  I  says,  "  I  have  no  notice  of  that."  "Well,"  he  says,  "it's 
in  this  thing."  And  I  took  it  and  looked  in  there  and  I  saw  I  was  appointed  super- 
visor at  Fergusson's  and  Jones'.  I  thought  that  was  a  mere  mistake.  I  don't  kuov 
how  come  at  two  places,  but  then  my  name  was  on  at  Fergusson's  and  Jones'  and  I 
thought  it  was  very  necessary  to  vote  for  Harrison  as  President,  and  I  wanted  to 
vote  the  whole  ticket,  especially  Featherston  ;  wanted  to  vote  the  whole  ticket.  We 
voted  the  State  and  county  ticket  solid  Republican.  There  wa'nt  but  six  men  went 
against  us  at  that  precinct  and  we  voted  128  or  l.iO  there.  The  reason  I  didn't  hold  the 
election  was  because  I  sent  it  to  the  judges  of  the  election.  1  thought  they  were 
elected  for  a  certain  term  under  proper  authorities.  I  sent  it  to  them  and  ordered  them 
to  open  the  polls  immediately,  that  I  was  going  to  hold  an  election.  There  was  none 
held  at  all ;  there  was  people  coming  there  all  day ;  I  reckon  there  was  more  than  25 
or  30.  I  reckon  there  was  more  than  them.  Of  course  I  counted  that  many  citizens 
of  the  county  and  there  was  citizens  of  the  United  States  and  we  couldn't  vote." 

Eev.  T.  J.  Jones  (colored)  says  also  at  Memphis  : 

My  usual  voting  place  is  Fergusson's,  though  I  voted  Jones'  on  the  national  elec- 
tion—Presidential election — voted  at  Jones',  was  at  Fergusson's  first  about  two  hours, 
I  reckon.  About  100  come  to  Fergusson's  during  the  day  to  vote.  I  did  not  know 
all  of  them.     I  knew  one  part  of  them.     They  all  was  Republicans. 

Q.  They  all  turned  out  to  vote  ? — A.  Yes,  sir  ;  all  but  about  a  few  white  men  was 
in  the  crowd.  They  was  Democrats.  I  didn't  see  any  of  those  white  men  at  the 
polls,  but  in  that  precinct  4  or  5  of  them  was  Democrats.  All  the  judges  pretty  well 
lived  there  in  that  voting  precinct  are  Democrats,  but  I  didn't  see  them  all  during 
the  day. 

If  there  were  two  voting  places  in  that  township  for  national  elec- 
tions, and  if  these  witnesses  speak  truth,  why  was  not  an  election  held 
at  both  as  the  law  authorized,  by  judges  chosen  by  the  people  ?  The 
witness,  Jones,  gives  the  true  state  of  the  case.  There  was  but  one 
voting  place  for  that  township  for  national  elections,  which  was  at 


144  FEATHERSTON   VS,    GATE. 

Jones's.  It  is  not  necessary  to  guess  at  what  might  have  been  the  result 
The  certified  returns  show  that  contestant  received  47  votes  there  that 
day  for  Representative  in  Congress  and  contestee  received  5  votes.  No 
evidence  of  intimidation  or  fraud  by  partisans  of  contestee  anywhere 
appears. 

Crawfordsville, ,  Crittenden  County. 

Contestant's  claims  as  to  this  precinct  are  as  follows : 

I  received  for  Representative  330  votes  and  you  received  71 ;  that  the  election  offi- 
cers of  said  township,  who  were  partisans  of  yours,  through  fraud  or  mistake  returned 
that  I  received  only  147  votes. 

Contestant,  instead  of  taking  evidence  in  the  county  to  sustain  this 
charge,  offers  evidence  taken  in  Memphis,  to  show  that  when  he  and 
his  attorney  went  to  Crawford sville  to  take  testimony  they  were  not 
treated  with  the  courtesy  and  politeness  which  the  citizens  of  a  town 
are  supposed  to  extend  to  a  stranger  who  is  there  on  legitimate  busi- 
ness; that  the  people  were  bitterly  opposed  to  Featherston  making  an 
investigation  of  the  election,  and  two  of  them  made  threats;  that  the 
attorneys  had  to  get  their  meals  at  a  colored  restaurant  and  spend  the 
first  day  in  a  saloon,  and  then  had  to  sleep  at  the  house  of  a  colored 
merchant;  that  Mr.  Berry,  attorney  for  Mr.  Cate,  refused  to  act  as 
notary,  though  he  had  before  promised  to  do  so  ;  that  some  6f  the  peo- 
ple were  drinking,  and  friends  of  Featlierston  took  him  ou-t  of  a  crowd 
to  prevent  difficulty,  and  that  a  majority  of  the  voters  who  voted  for 
him  would  be  afraid  to  testify  there,  and  a  mass  of  other  matter  which 
in  nowise  relates  to  the  merits  of  this  contest. 

We  shall  now  discuss  the  question  whether  testimony  taken  as  this 
was  should  be  considered  by  the  House,  and  weigh  it  for  its  worth. 
As  we  have  repeated,  it  was  taken  without  notice  and  in  violation  of 
law. 

Act  of  March  2,  1875  (laws  2,  43,  p.  338) :  It  is  provided  that  the 
party  desiring  to  take  depositions  under  the  provisions  of  this  act  shall 
give  the  opposite  party  notice  in  writing  of  the  time  and  place  when 
and  where  the  same  will  be  taken ;  of  the  name  of  the  witness  to  be 
taken,  and  their  places  of  residence,  and  of  the  name  of  the  officer  be- 
fore whom  the  same  will  be  taken. 

To  pretend  not  to  evade  these  requirements  of  the  law  W.  B.  Eld- 
ridge  says  in  his  deposition : 

I  notified  L.  P.  Berry,  the  attorney  of  Mr.  Cate,  that  Featherston  would  take 
proof  in  Memphis,  Tenn.,  at  ray  office  on  February  24,  1889.  Walsh  and  myself  both 
notified  Berry  that  we  would  begin  taking  proof  at  59  Madison  street,  Memphis, 
Tenn.,  February  25,  1889. 

We  here  introduce  the  affidavit  of  Mr.  Berry,  which  flatly  contradicts 
Mr.  Eldridge  upon  this  point. 

State  of  Arkansas,  County  of  Crittenden : 

I,  L.  P.  Berry,  an  attorney  at  law,  resident  at  Marion,  Crittenden  County,  Ark., 
being  sworn,  do  state  that  I  have  before  me  a  printed  copy  of  the  evidence  in  the 
case  of  L.  P.  Featherston  vs.  W.  H.  Cate  in  the  contest  for  a  seat  in  the  Fifty-first 
Congress  of  the  United  States  from  the  first  district  of  Arkansas,  wherein  it  apjjears, 
on  page  227  of  said  printed  i-ecord,  that  one  W.  B.  Eldridge  states  or  testifies  as  fol- 
lows: "I  notified  Mr.  L.  P.  Berry,  the  attorney  of  Mr.  Cate,  that  Mr.  Featherston 
would  take  proof  at  Memphis,  Tenn.,  at  my  office,  on  the  Congressional  contest ;  on 
February  23  Mr.  Henry  Walsh  and  myself  both  notified  Mr.  Beriy  that  we  would 
begin  taking  proof  at  59  Madison  street,  Memphis,  Tenn.,  at  9  o'clock  on  February 
23,  18H9,"  and  I  further  state  that  this  statement  is  untrue,  and  without  any  founda- 
tion in  fact ;  that  Mr.  Eldridge  and  Mr.  Walsh  did  not  give  me  any  such  notice,  nor 
either  of  them  as  he  states,  and  I  never  knew  of  evidence  relating  to  Crittenden 


FEATHERSTON    VS.    GATE.  145 

County  until  I  saw  it  printed  in  the  record,  nor  do  I  to  this  day  know  at  what  place 
said  supposed  evidence  was  taken. 

I  further  state  that  I  was  only  authorized  to  act  for  Mr.  Gate  as  his  attorney  in  said 
Gounty  so  far  as  related  to  taking  proof  in  Grittenden  County,  Arkansas,  and  hud  no 
authority  to  represent  him  or  take  proof  elsewhere,  or  accept,  ^ceive,  or  waive  any 
notice  relative  to  taking  proof  elsewhere. 

L.  P.  Berry. 

Sworn  to  and  subscribed  before  me  this  January  10,  1890. 

[seal.]  Sam'l  Keel,  Clerk, 

By  O.  M.  TUKTS,  D.  C. 

If,  however,  there  were  no  questions  of  the  truthfulness  of  Mr.  Feath- 
erston's  lawyer,  it  is  clear  that  the  notice  could  not  have  been  in  writing 
giving  contestee  the  material  facts  concerning  the  witnesses  to  be  ex- 
amined. It  was  a  plain  violation  of  the  law  in  that  respect  for  some 
covert  reason. 

The  officer  shall  cause  the  testimony  of  the  witnesses,  together  with  the  questions 
proposed  by  the  parties  or  their  agents,  to  be  reduced  to  writing  in  his  presence,  and 
in  the  presence  of  the  parties  or  their  agents,  if  attending,  and  to  be  duly  attested 
by  the  witnesses  respectively  (R.  S.,  sec.  122). 

The  certificate  of  the  notary,  E.  M.  Avery  (page  185  of  the  record), 
shows  that  this  provision  of  law  was  violated.  Although  he  attempts 
to  gi\  e  the  impression  that  the  words  of  the  witnesses  were  reduced  to 
writing  by  type-writer,  and  submitted  to  witnesses  and  attested  by 
them,  he  says  the  short-hand  reporter's  notes  are  herewith  transmitted, 
etc. 

Tlie  performances  with  the  witnesses  he  said  occurred  in  February 
and  early  in  March.  His  certificate  is  dated  July  13,  and  upon  the 
original  papers  on  file  in  the  committee  room,  the  names  are  all  signed 
by  type- writer,  even  of  those  who  are  represented  as  signing  their  own 
names,  except  Eldridge's  and  one  other's. 

All  officers  taking  testimony  to  be  used  in  a  contested  election  case,  whether  by 
deposition  orotherwise,  shall,  when  the  taking  of  the  same  is  completed  and  without 
unnecessary  delay,  certify  and  carefully  seal  and  immediately  forward  the  same  by 
mail  or  express  to  the  Clerk  of  the  House  of  Representatives.     (Act  approved  March 

2,1887.) 

This  provision  of  the  law  is  also  disregarded.  What  good  reason  can 
be  given  for  this  unlawful  course  ?  In  this  case  the  legal  time  for  tak- 
ing testimony  closed  April  15.  •  As  required  by  statute  the  Clerk  of  the 
House  of  Representatives  notified  parties  that  they  should  appear  be- 
fore him  June  28,  for  the  purpose  of  being  present  at  the  opening  of 
the  sealed  packages  of  testimony  and  of  agreeing  upon  the  parts  thereof 
to  be  printed.  They  came  here.  Only  part  of  the  depositions  were  in 
the  hands  of  the  Clerk.    None  of  those  taken  in  Memphis  were  on  file. 

Contestant  asked  for  further  time,  which  was  granted,  and  contestee 
remained  here  waiting  until  July  7 ;  but  these  papers  were  not  filed. 
On  July  21  they  were  at  last  filed.  Contestee  never  saw  them  or 
learned  their  contents  until  a  printed  coi)y  of  them  reached  his  hands 
late  in  September.  The  contestant  and  his  attorneys  have  never  at- 
tempted any  explanation  or  offered  any  excuse  for  this  extraordinary, 
sus])icious,  and  illegal  delay.  The.  contestee  was  without  any  oppor- 
tunity to  be  present  and  see  and  hear  these  witnesses  while  they  were 
telling  their  tales  or  to  cross-examine  them  or  to  bring  proof  subse- 
quently to  explain  or  contradict  their  statements.  Their  record  is  full 
of  the  abuses  which  occurred  under  such  circumstances. 

Leading  questions  forcing  false  statements  from  the  lips  of  ignorance 
are  found  upon  nearly  every  page.  In  more  than  one  instance  the  wit- 
ness has  thus  placed  on  his  tongue  a  statement  contradicting  others  he 
H.  Mis.  137 10 


146  FEATHERSTON   VS.    GATE. 

has  just  made.  Perjury  so  striking  and  peculiar  that  it  would  be  ridicu- 
lous if  it  were  not  jjitiable,  discredits  more  than  one  page.  In  such  a 
way  the  contestant  seeks  to  have  the  returns  at  Crawfordsville  set 
aside  and  himself  given  the  same  vote  as  the  electors  for  the  Republi- 
can national  ticket  received  at  this  precinct,  although  there  was  a  reg- 
ular Kepublicau  candidate  for  Eepresentative,  a  resident  of  St.  Francis 
county,  who  divided  that  vote  with  him. 

The  clerk's  certificate  shows  that  the  Republican  electors  received  330 
votes,  the  Democratic  electors  71  votes.  It  also  shows  that  W.  R.  Bar- 
rett, for  Representative  in  Congress,  received  160  votes ;  L.  P.  Feather- 
ston,  147  votes;  Willi  m  H.  Cate,  88  votes.  The  majority  report  has  not 
been  submitted  to  us,  so  that  we  do  not  know  upon  what  claims  the 
committee  proposes  to  unseat  this  member  of  Congress  duly  elected  by 
the  people  of  one  of  the  largest  and  most  populous,  enterprising,  and 
intelligent  of  the  districts  of  the  State  of  Arkansas. 

The  contestee  comes  here  with  a  certified  majority  of  1,348.  If  all 
that  is  claimed  for  contestant  in  Phillips  County  were  allowed,  which 
is  181,  that  would  leave  him  1,167;  and  then  if  the  votes  in  the  seven 
townships  of  Crittenden  County,  not  certified  up  by  the  clerk  were 
allowed  as  if  there  were  no  question  of  their  legality — there  would  be 
522  for  Featherston,  less  150  for  Cate,  or  472  more  to  be  taken  from 
contestee's  majority,  1,167,  leaving  him  a  majority  of  595,  to  which  he 
is  rightiully  entitled. 

But  suppose  the  House  should  go  a  step  further  and  give  the  con- 
testee arbitrarily  the  169  votes  cast  for  the  true  Republican,  Barrett, 
at  Crawfordsville,  to  punish  the  citizens  of  that  town  for  their  im- 
politeness, discourtesy,  and  rudeness  to  contestee.  that  even  would  not 
obliterate  the  majority  of  the  sitting  member,  but  only  reduce  it  to 
426. 

Therefore  we  recommend  the  passage  of  the  following  resolutions  : 

Bes!)lved,  That  L.  P.  Featherston  was  not  elected  as  a  Representa- 
tive to  the  Fifty-first  Congress  from  the  First  Congressional  district  of 
Arkansas. 

Resolved,  That  William  H.  Cate  was  duly  elected  and  is  entitled  to 
retain  his  seat. 

Jos.   H.   OUTHWAITE, 

Chas.  F.  Crisp, 
Chas.  T.  O'Ferrall, 
Levi  Matsh, 
L.  W.  Moore, 
Robert  P.  C.  Wilson. 


S.  E.  MUDD  vs.  BARNES  COMPTON. 

FIFTH  MARYLAND. 


Contestant  claimed  (l)to  be  elected  on  the  face  of  the  precinct  returns, 
and  that  these  returns  are  primary;  (2)  to  have  a  majority  of  the  legal 
votes  after  the  deductions  and  additions  required  by  the  evidence  are 
made ;  and  (3)  that  he  had  been  deprived  of  175  votes  in  one  precinct 
by  violence  and  intimidation.  All  three  claims  are  sustained  by  the 
committee,  the  minority  dissenting  both  as  to  the  law  and  the  facts  (see 
minority  report,  page  161).  The  resolutions  presented  by  the  committee 
were  adopted  March  20,  1890,  by  a  vote  of  159  to  145,  and  Mr.  Mudd 
was  sworn  in.  The  debate  will  be  found  on  pages  2392  to  2419  of  the 
Record. 

(1)  Returns.   Which  primary  evidence. 

According  to  the  law  of  Maryland,  the  duties  of  the  presiding  judges 
when  assembled  at  the  county  seat,  are  purely  ministerial.  They  are 
to  add  up  the  votes  of  the  precinct  returns  on  the  books  of  the  polls 
and  to  certify  the  results  of  this  addition  to  the  governor.  They  can 
neither  throw  out  votes  certified  by  the  precinct  judges,  nor  return  votes 
not  certified  by  the  precinct  judges.  It  is  presumed,  of  course,  that  the 
presiding  judges  will  do  their  work  accurately,  and  that  their  returns 
to  the  governor  will  contain  a  correct  summary  of  the  votes  in  their 
county.  This  presumption  is,  however,  merely  a  prima  facie  one,  and 
can  be  rebutted  at  any  time  by  showing  that  these  returns  were,  in  fact, 
not  a  correct  summary  of  the  precinct  returns ;  and  when  this  is  done, 
the  returns  to  the  governor  must  be  disregarded  and  resort  had  to  the 
primary  evidence  of  the  result  of  the  election;  that  is,  to  the  precinct 
returns  themselves. 

(2)  Ballot.    Imperfect. 

Whenever  the  intention  of  the  voter  is  clear  and  unmistakable,  effect 
should  be  given  to  it. 

(3)  Burden  of  proof. 

When  it  appears  that  the  contestant  was  elected  on  the  face  of  the 
returns,  the  burden  of  showing  that  these  returns  were  not  correct  is 
thrown  on  the  contestee. 

(4)  Votes  unlawfully  rejected, 

147 


148  MUDD    VS.    COMPTON. 

The  votes  of  legal  voters  who  dulj'  offered  to  vote  and  had  their  votes 
refused,  the  judges  truthfully  or  falsely  alleging  that  some  one  else  had 
previously  voted  on  the  name,  should  be  countetl  for  the  condidate  for 
whom  it  is  proved  they  offered  to  vote. 

(5)  Votes.    Names  not  on  poll  book. 

A  large  number  of  votes  was  rejected  because  the  voters  who  had 
'duly  api)lied  for  registration,  and  been  registered,  found  their  names 
omitted  from,  or  inaccurately  copied  on,  the  poll  books.  It  was  claimed 
that  these  votes  could  not  be  counted,  because  the  law  of  Maryland 
makes  the  poll  books  conclusive  evidence  of  the  right  of  a  man  to  vote. 
Held,  that  the  law  simply  lays  down  a  rule  of  evidence  for  the  guidance 
of  the  judges  of  election,  so  as  to  reduce  to  a  minimum  their  judicial 
functions.    The  votes  should  be  counted  on  a  contest. 

(6)  Votes  improperly  rejected . 

Where  votes  were  rejected  by  the  judges  because  of  real  or  assumed 
doubts  as  to  the  identity  of  the  voters  presentiug  themselves;  held  that 
where  their  identity  is  clearly  established,  these  votes  must  be  counted 
for  the  candidate  for  whom  they  were  tendered. 

(7)  Intimidation.    Amount  of  violence  necessary. 

The  committee  holds  that  a  citizen  has  a  right  to  a  free  and  unmolested 
api)roach  to  the  ballot  box,  and  is  not  bound  to  fight  his  way  to  a  poll- 
ing window,  especially  when  to  do  so  he  must  come  into  conflict  with 
persons  who  claim  to  be  officers  of  the  law,  the  truthfulness  of  which 
claim  he  has  no  means  of  negativing,  and  that  a  candidate  whose  sup- 
porters have  done  all  in  their  power  to  make  voters  believe  that  they 
would  suffer  injury  if  they  attempted  to  vote,  can  not  be  heard  to  say 
that  the  intimidated  voters  should  not  have  believed  the  threats  made 
to  them. 


HEPORT. 


I 


Febkuaky  27,  1890. — Mr.  Cooper,  of  Ohio,  from  the  Committee  on 
Elections,  submitted  the  following  report: 

The  Committee  on  Elections,  having  had  under  consideration  the  con- 
tested election  case  of  Sydney  E.  Mudd,  contestant,  against  Barnes 
Compton,  contestee,  from  the  Fifth  Congressional  district  of  Maryland, 
submits  the  following  report: 

At  an  election  held  on  the  6th  day  of  November,  1888,  Barnes  Comp- 
ton and  Sydney  E.  Mudd  were,  respectively,  Democratic  and  Rt  publican 
candidates  for  election  as  Representative  to  the  Fifty  first  Congress 
from  the  Fifth  Congressional  district  of  Maryland.  The  former  obtained 
the  governor's  certificate  and  now  holds  the  seat. 

His  right  to  it  is  contested  by  the  latter,  who  asserts — 

(1)  That  he  was  elected,  on  the  face  of  the  returns,  by  a  plurality  of 
three  votes,  receiving  in  all  (as  appears  on  the  precinct  returns)  16,283 
votes,  while  the  contestee,  as  appears  from  the  same  returns,  received 
16,280  votes. 

(2)  That  he  was  elected,  if  all  the  votes  for  both  contestant  and  con- 
testee improperly  rejected  are  counted  for  them,  respectively,  and  all 
votes  improperly  counted  for  them  are  deducted. 

(3)  That  at  the  first  precinct  of  the  third  district  of  Anne  Arundel 
County  (the  vote  of  which  was  returned  for  contestee  168,  for  contestant 
32)  the  partisans  of  the  contestee,  by  violence,  threats,  and  intimidation, 
prevented  175  legal  voters  who  wished  to  vote  for  contestant  from 
doing  so. 

PRIMA  FACTE   CASE. 

The  law  of  Maryland  (Code  Public  General  Laws,  section  66,  article 
33,  record,  page  639)  requires  the  judges  of  election,  as  soon  as  the  bal- 
lots are  read  off' and  counted  ancl  the  number  for  each  candidate  reck- 
oned up  and  ascertained,  to  make  out  under  their  hands  on  the  books 
of  the  polls  two  distinct  statements  and  certificates  of  the  number  of 
votes  which  have  been  given  for  each  candidate.  The  presiding  judge 
of  election  (section  68,  article  33,  Code  of  Public  General  Laws)  takes 
charge  of  these  two  poll-books  containing  these  certificates  and  state- 
ments, and  on  a  subsequent  day,  within  ten  days  after  the  election,  all 
the  presiding  judges  of  each  county  assemble  at  the  Court-house  of  their 
respective  county.  When  so  assembled,  (section  69,  article  33,  Code  of 
Public  General  Laws,  Record  page  640),  the  presiding  judges  cast  uj)  the 
entire  vote  of  all  the  districts  or  precincts  of  the  county,  and  make  out 
two  distinct  certificates  or  statements  of  the  number  of  votes  given  in 
their  county  for  each  candidate.  One  of  these  certificates  is  then  to  be 
delivered  to  the  clerk  of  the  county  court  for  the  county  and  the  other 
to  be  mailed  to  the  governor.    The  governor  then  issues  a  certificate 

149 


150 


MUDD   VS.    COMPTON. 


to  the  person  who,  from  the  returns  so  sent  to  him,  appears  to  have 
been  elected. 

According  to  the  law  of  Maryland,  the  duties  of  the  presiding  judges 
when  assembled  at  the  county  seat,  are  purely  ministerial.  They  are 
to  add  up  the  votes  of  the  precinct  returns  on  the  books  of  the  polls 
and  to  certify  the  results  of  this  addition  to  the  governor.  They  can 
neither  throw  out  votes  certified  by  the  precinct  judges,  nor  return 
votes  not  certifiied  by  the  precinct  judges.  It  is  presumed,  of  course, 
that  the  presiding  judges  will  do  their  work  accurately,  and  that  their 
returns  to  the  governor  will  contain  a  correct  summary  of  the  votes  in 
their  county.  This  presumption  is,  however,  merely  a  prima  facie  one, 
and  can  be  rebutted  at  any  time  by  showing  that  these  returns  were, 
in  fact,  not  a  correct  summary  of  the  precinct  returns;  and  when  this 
is  done,  the  returns  to  the  governor  must  be  disregarded  and  resort 
had  to  the  primary  evidence  of  the  result  of  the  election;  that  is,  to  the 
precinct  returns  themselves. 

In  tbis  case  the  returns  forwarded  to  the  governor  footed  up  for 
Barnes  Compton  10,000  votes ;  for  Comptou  1  vote ;  for  Sydney  E.  Mudd 
15,819  votes;  for  S.  N.  Mudd  1  vote.  The  contestant  denies  the  accu- 
racy of  said  retufns  to  the  governor,  and  files  duly  certified  copies  of 
the  precinct  returns  from  every  precinct  in  the  Congressional  district 
(record,  pages  712  to  779),  which  show  that  the  vote  in  the  district  for 
the  contestant  and  the  contestee  was  as  follows : 

For  SvdnevE.  Mudd 16,279 

For  S'N.  Mudd 1 

For  S.  E.  Mudd 1 

For  Mudd 1 

"One  ticket  upou  which  Sydney  E.  Mudd's  name  appeared  twice  and  Mudd's 
name  was  not  counted  in  the  above  returns" 1 

Total 16,283 

For  Barnes  Compton 16, 280 

Plurality  for  Sydney  E.  Mudd 3 

Comparing  these  precinct  returns  with  the  returns  made  to  the  gov- 
ernor, it  is  found : 

(1)  That  the  returns  to  the  governor  frotn  the  counties  of  Howard, 
Anne  Arundel,  and  Baltimore,  and  from  the  city  of  Baltimore,  were  ac- 
curate summaries  of  the  i)recinct  returns  and  were  correct. 

(2)  That  in  the  third  district  of  St.  Mary's  County  there  were  returned 
by  the  precinct  judges  1  vote  for  "  S.  E.  Mudd,"  and  1  vote  for"  Mudd," 
but  the  presiding  judges  did  not  include  these  votes  in  their  return  to 
the  governor. 

(3)  That  the  returns  from  the  fifth  and  ninth  districts  of  Charles 
County  were  not  included  in  their  returns  to  the  governor,  because  at 
the  time  the  presiding  judges  made  up  their  returns  the  returns  from 
these  precincts  were  sealed  up  in  the  boxes  which  the  presiding  judges 
had  no  authority  to  open.  These  boxes  were  afterwards  opened  by  an 
order  of  court,  and  certified  copies  of  the  returns  found  in  them  have 
been  filed,  which  show  that  the  contestant  received  in  these  districts  432 
votes  and  the  contestee  280  votes. 

(4)  That  the  face  of  the  precinct  returns  from  the  sixth  district  of 
Charles  County  shows — 

There  was  one  ticket  upon  which  Sydney  E.  Mudd's  name  appeared  twice  and 
Mudd's  name  was  not  counted  in  the  above  returns. 

(5)  That  in  Calvert  County  the  returns  to  the  governor  allow  the 
contestant  1,138  votes,  whereas  the  actual  vote  cast  and  counted  in  this 


MUDD    VS.    COMPTON.  151 

county,  and  shown  b.y  the  certified  copies  of  the  precinct  returns 
(record,  pages  746  to  749),  was  1,106.  Mr.  Mudd  called  the  return  judges 
of  every  precinct  in  the  county  (record,  pages  271-275),  and  proved  by 
them  that  the  returns  then  on  file  in  the  clerk's  office  were  the  very  re- 
turns which  tbey  made  and  were  in  no  way  altered.  He  proved  by  the 
editor  of  the  Democratic  paper  in  the  county  town  that  on  the  day  the 
returns  were  made  up,  he  copied  them  for  his  paper  and  that  they  gave 
the  contestant  1,106  votes.  He  proved  by  the  clerk  of  the  court  that 
immediately  upon  seeing  it  stated  in  the  newspapers  that  the  return  to 
the  governor  gave  the  contestant  only  1,138,  he  wrote  to  the  governor 
stating  that  a  mistake  had  been  made  and  asking  jjermission  to  correct 
it.  The  deputy  clerk  of  the  court  who  made  up  the  returns  to  the 
governor,  swears  himself  that  these  returns  so  sent  on  by  him  were 
erroneous  and  that  those  in  the  clerk's  office  were  correct  (see  record, 
pages  271-275).  If  the  precinct  returns  of  any  precinct  had  been 
altered,  the  contestee  could  have  offered  some  evidence  to  show  that 
such  alterations  had  taken  place,  but  he  did  not,  in  fact,  take  any  testi- 
mony whatever  upon  the  subject.  The  committee  believe  that  the  con- 
testee is  sunply  trying  to  raise  a  technical  point  of  evidence  to  defeat 
the  contestant's  claim  to  28  votes,  which  no  one  can  seriously  doubt 
the  contestant  received,  and  that  the  contestant's  vote  in  Calvert  County 
was  1,166. 

(6)  That  in  the  precinct  returns  from  Prince  George's  County  (record, 
pages  762-772)  there  was  no  mention  of  a  vote  for  "  (kJompton,"  which 
the  presiding  judges  in  their  return  to  the  governor  say  was  cast  in  the 
tenth  district  <»f  the  county,  and  consequently  the  presiding  judges  had 
no  right  to  includ^^  it  in  their  return  to  the  governor.  The  contestant 
has,  however,  attempted  to  show  that  he  was  entitled  to  the  vote  by 
offering  in  evidence  a  certificate  of  the  clerk  of  the  court  of  the  county 
(record,  page  010),  that  on  one  of  the  tally-lists  of  the  district  there  ap- 
pears, "  one  ticket  for  '  Comj^ton,'  not  counted  for  Barnes  Compton  ; "  on 
the  other  of  said  tally-sheets,  "  one  ticket  for  Compton,  torn,  not  counted 
for  Barnes  Compton."  There  is  no  other  evidence  concerning  this  vote. 
The  tally  lists  are  not  a  part  of  the  certificate  or  statement  from  which 
the  law  requires  the  presiding  judges  to  make  up  their  return;  and  if 
they  were,  their  contents  are  not  sufficiently  proved  by  a  certificate  of  the 
clerk  that  such  and  such  a  thing  appears  upon  them.  Public  officers 
prove  public  records,  not  by  statements  as  to  what  their  contents  are, 
but  by  certified  copies  of  the  documents  themselves.  Moreover,  it  would 
seem,  from  statements  quoted  from  one  of  the  tally-lists  referred  to,  that 
the  judgjs  may  have  decided  that  the  voter  intended  to  cancel  his  ticket 
as  to  candidate  for  Congress  by  tearing  it. 

For  these  reasons  the  committee  does  not  think  it  clear  that  the  con- 
testee is  by  the  evidence  entitled  to  this  vote,  but  thinking  it  likely 
that  such  a  vote  may  have  been  cast,  has  concluded  to  allow  it.  Upon 
the  face  of  the  returns  the  committee,  therefore,  finds  that  the  vote 
stood : 

For  Sydney  E.  Mudd.... t 16,279  •'' 

For  S.E.  Mudd l' 

For  S.N.  Mudd 1 

For  Mudd 1 

One  ticket  on  which  Mudd's  name  appeared  twice,  not  counted  for  Mudd 1 

16,283 

For  Barnes  Compton 16,280 

For  Compton 1 

16,281 


Plurality  for  Sydney  E.  Mudd . 


152 


MUDD    VS.    COMPTON. 


There  were  no  persons  by  the  name  of  Mudd  and  Compton  other 
than  the  contestant  and  the  contestee  candidates  for  Congress  at  this 
election ;  and,  therefore,  nnder  the  well  established  rule  of  the  House, 
the  vote  for  "  Compton  "  if  counted  at  all  should  be  counted  for  the 
contestee,  and  the  votes  for  "S.  E.  Mudd,"  for  "Mudd"  and  for  "S.  N. 
Mudd"  for  the  contestant.  It  is  well  settled  by  the  authorities  that  the 
fact  that  the  same  candidate's  name  is  on  the  same  ticket  more  than 
once,  is  no  reason  why  that  ticket  should  not  be  counted,  as  one  vote, 
for  that  candidate.  It  would,  therefore,  follow  that  the  contestant  is 
entitled  to  the  one  vote  not  counted  for  him,  because  his  name  is  on  the 
ticket  twice.  The  contestee  has,  however,  offered  evidence  (Record,- 
pp.  455-457)  that  this  ticket  was  not  counted  for  the  contestant,  not 
because  the  name  was  on  the  ticket  twice,  but  because  the  paster  (upon 
which  his  name  was  printed)  was  pasted  on  the  regular  Republican 
ticket  so  as  to  cover  up  the  designation  of  the  office  for  which  he  was 
a  candidate.  If  this  be  granted,  it  still  remains  true  that  whenever  the 
intention  of  the  voter  is  clear  and  unmistakable,  effect  should  be  given 
to  it;  and  no  one  can  have  any  doubt  that  the  voter  of  this  ticket — a 
straight  Republican  ticket — intended  to  vote  for  Mr.  Mudd  for  the  only 
office  for  which  he  was  a  candidate.  No  provision  of  a  statute  regula- 
ting the  form  of  ballots  will  be  held,  or  was  ever  intended  to  be  held, 
as  mandatory  in  contravention  of  such  a  plain  and  manifest  intent. 
The  committee  is,  therefore,  of  the  opinion  that  the  contestant  is  entitled 
to  this  vote  a»d  vvill  count  it.  The  face  of  the  returns,  then,  in  the 
opinion  of  the  committee,  show  that  the  contestant  was  entitled  to 
16,283  votes,  and  the  contestee  to  16,281  votes,  giving  the  contestant  a 
plurality  of  2  votes.  Such  being  the  case,  the  lyirden  of  showing 
that  these  returns  (the  primary  evidence  of  the  result  of  the  election) 
were  not  correct,  is  thrown  on  the  contestee. 

EEVIEW  OF  DISPUTED  VOTES. 

The  committee  holds  that  the  votes  of  legal  voters  who  duly  offered  to 
vote  and  had  their  votes  refused,  the  judges  truthfully  or  falsely  alleg- 
ing that  some  one  else  had  previously  voted  on  the  name,  should  be 
counted  for  the  candidate  for  whom  it  is  proved  they  offered  to  vote.  It 
is  bad  enough  that  a  person  who  has  no  right  to  vote  gets  his  vote  in ; 
it  would  be  worse  if  by  getting  his  vote  in  he  kept  an  honest  man's  vote 
out. 

Under  this  ruling  the  contestant  gains  the  votes  of  six  persons,  whose 
names,  their  county  and  district,  the  allegation  of  the  notice  under 
which  the  tender  and  refusal  of  their  votes  was  proved,  and  the  pages 
of  the  record  showing  the  proof,  are  as  follows : 


Xame. 

County  and  district. 

a 

C3 

Pages  of  record. 

Butler  Wm    

Ist  precinct,  13th  district,  Baltimore      12 

15,17,286,288,674. 
252, 254. 

Smith  John  H 

County. 

24 

3d  district,  Prince  George's  County  .. 
do 

29 
29 
28 
22 

259,  260. 

Green,  Chaa  H           .  

260  261 

Brown,  Henry 

Williams  Thos 

13th  district,  Prince  George's  County . 
Ist  pre't,  18th  ward,  Baltimore  County 

261. 262,  263. 
37,38,40,41,320,322,669. 

MUDD   VS.    COMPTON.  l5B 

Contestee  proves  no  votes  of  this  class. 

A  large  number  of  votes,  on  both  sides,  were  rejected  because  the 
voters  who  had  duly  applied  for  registration  and  been  registered  found 
their  names  omitted  from  or  inaccurately  copied  on  the  poll-books.  It 
is  urged  by  the  contestee  that  the  law  of  Maryland  makes  the  poll-book 
conclusive  evidence  of  the  right  of  a  man  to  vote  ;  and  that  these  votes 
can  not  be  counted.    The  committee  can  not  assent  to  this  proposition. 

The  law  simply  lays  down  a  rule  of  evidence  for  the  judges  of  election, 
and  is  intended  to  reduce  to  a  minimum  their  judicial  functions.  Into 
the  qualification  of  voters  they  can  not  inquire.  All  they  have  tUe  right 
to  pass  upon  is  the  question  :  whether  or  not  a  person  oftering  to  vote 
is  the  person  whose  name  is  on  the  ])oll-book.  This  limitation  is  im- 
posed upon  them,  because  in  the  view  of  the  Maryland  law  a  polling 
window,  on  election  day,  is  not  a  proper  place  to  investigate  questions 
of  qualification.  A  simple  rule  is  laid  down  for  the  guidance  of  the 
judges,  and  any  injustice  which  may  be  done  by  the  application  of  this 
rule  can,  if  necessary,  be  corrected  by  the  tribunal  before  which  the 
contest  is  made.  The  class  of  cases  about  which  we  have  been  speak- 
ing, together  with  another  class  represented  by  a  vote  on  each  side  in 
which  the  voter  was  improperly  refused  registration,  are  the  very  sort 
of  cases  to  provide  clearly  for  which  the  third  section  of  the  act  of  Con- 
gress of  May  31,  1870,  was  enacted,  which  section  read  as  follows : 

That  whenever,  by  or  under  the  authority  of  the  constitution  or  laws  of  any  State 
or  the  laws  of  anj"  Territory,  any  act  is,  or  shall  be,  required  to  be  done  by  any  citizen 
as  a  pre-requisite  to  qualify  or  entitle  him  to  vote,  the  offer  of  any  such  citizen  to 
perform  the  act  required  to  be  done  as  aforesaid  shall,  if  it  fail  to  be  carried  into  ex- 
ecution by  reason  of  the  wrongful  act  or  omission  of  the  person  or  officer  charged 
with  the  duty  of  receiving  or  permitting  such  performance  or  offer  to  perform  or  acting 
thereon,  be  deemed  and  held  as  a  performance  in  law  of  such  act,  and  the  person  so 
offering  and  failing  as  aforesaid,  and  being  otherwise  qualified,  shall  be  entitled  to 
vote  in  the  same  manner  and  to  the  same  extent  as  if  he  had  performed  such  act. 

The  admission  of  such  votes  is  in  accord  with  the  unvarying  practice 
of  Congress  and  the  almost  uniform  decisions  of  the  courts,  and  the 
committee  will  count  all  such  votes  properly  proved  on.  both  sides. 

The  contestee  has  offered  to  prove  a  number  of  votes  lost  by  him  be- 
cause of  inaccuracies  on  the  poll-books,  not  otherwise  referred  to  in  his 
answer  than  by  an  allegation  that  in  a  very  large  number  of  other 
election  districts  he  lost  votes  Irom  this  cause,  and  more  votes  from 
such  cause  than  the  contestant. 

The  contestant  objects  to  the  admission  of  this  testimony  on  the 
ground  that  this  general* allegation  does  not,  in  the  language  of  the 
statute  governing  contested  elections,  state  ''  specifically  the  other 
grounds"  upon  which  the  sitting  member  rests  the  validity  of  his  elec- 
tion ;  and  the  committee  is  inclined  to  agree  with  the  contestant,  but 
as  the  committee  in  this  case  has  no  doubt  that  the  contestee  was  really 
entitled  to  some  of  the  votes  of  this  class  which  he  has  proved,  the  con- 
testee will  be  allowed  the  votes  he  has  proved  he  lost  from  inaccuracies 
of  the  i)oll-books,  whether  the  loss  of  these  votes  was  or  was  not  specif- 
ically alleged.  The  committee,  however,  on  the  same  principle,  will ' 
allow  the  contestant  the  votes  he  proved  in  rebuttal  of  the  contestee's 
allegation  in  paragraph  9  of  his  answer,  that  the  contestee  lost  more 
votes  than  the  contestant  because  of  inaccuracies  on  the  poll-books.  In 
most  cases  the  contestant  proved  how  the  person,  whose  vote  he  claimed 
to  have  lost  in  this  way,  would  have  voted  had  his  vote  been  received, 
by  the  testimony  of  the  voter  himself. 

The  contestee,  in  a  much  larger  proportion  of  the  votes  he  proved, 
proved  how  they  would  have  voted  by  other  and  less  conclusive  testi- 


154 


MUDD   VS.    COMPTON. 


mony,  in  some  instances  by  merely  proving  that  the  voter  was  or  had 
been  a  Democrat.  The  contestant  objects  to  votes  proved  in  this  iast- 
mentioned  way  being  counted,  on  the  ground  thai  as  he  received  a 
great  many  Democratic  votes  in  the  district,  there  is  no  certainty  that 
these  voters  wanted  to  vote  for  contestee.  The  committee,  however, 
has  decided  to  allow  the  contestee  these  votes.  Under  these  rulings, 
therefore,  the  contestant  gains  the  votes  of  forty-four  persons — forty 
under  specific  allegations  and  four  in  rebuttal — under  general  allega- 
tion above  referred  to. 

The  names  of  these  voters,  their  county,  and  district  or  ward,  and 
precinct,  the  allegation  of  the  notice  under  which  these  votes  were 
proved,  and  the  pages  of  the  record  containing  the  proof,  are  as  fol- 
lows: 

Forty  under  specific  allegations. 


Name  of  voter. 


Elec.distorpre 


P.  of  rec. 


Gamble,  Benjamin  F 

Hopkins,  Mai.  or  Melchis- 
eaek. 

Miller,  A.  W.  Herman 

Washington,  E  iward 

Gi.mble,  Daniel  E 

J  ohnson,  Winfleld  S 

Wilder,  John  D 

Lutsche,  George-  H 

Virts,  John  R 

Taylor,  .John 

Kane,  James  E 

Hill,  Wiiliam  Henry 

Chester,  Isaiah  

Frank,  Jacob     

Smith,  Geo.  Washington  . . 

Bi  ogden,  \\  illiam  H 

Co.slen,  John  H    

Sampson.  Joseph  H 

Allsop,  William 

Heed.  Robert 

Leman,  Davitl  W 

Mills,  George  H  

Fishpaw.  A  quilla 

Cure,  Lev     

Clement.s,  James  W 

Green,  James  W 

Thomas,  John  Henry 

Richardson.  Wm.  T 

Gordon.  Philip 

Kellar,  Ishmael  W 

Thomas.  John  F 

Brown.  Augnstin    

Thomas.  James  W 

Lvles,  Philip     

Thomas,  William 

Bowen.  .JohnT 

Coats,  Wm.  Francis. 

Brooks,  David  R 

Barnes,  James  Henry 

Whit.temore,  Charles  W  . . . 


1st  pre.,  13th  dist.,  Baltimore  Co 

1st    "      13th      "  "  " 

l8t    "      13th      "  "  " 

l8t    "      13ih      "  " 

1st    "      13th      " 

1st    "      17th  ward,  Balto.  City. 

Ist    "      17th       " 

let ,  "      17th 

2d     "      17th 

9th    "      17th       " 

9th    "      17th      " 

8th    "      ]7tU      " 

9th    "      17tli     '"  " 

1st    "      leth      " 

1st    "       16th       " 

Ist    "      16th    .  " 

1st     "      16th       " 

Ist    "      16th  wa-d,  Balto.  City 

let    "      16th 

Ist    "      16th       " 

3d      "      Ist  dist.  Baltimore  Co 

let     "     Howard      '* 

6th     " 

6th     " 
3d  pre.    1st     "     Baltimore  " 
3d      "      1st     '• 

Cth    "      Howard       " 

Ist     '• 

Ist     "  "  "  , 

3d  pre.    Ist     "     Baltimore    " 

6th     "     Charles        " 

5th     " 

5th  dist.     Charles   Co 

5th     " 

5th    " 

8th      '     St.  Mary's   " 

5th     " 

5th     '• 

5th    " 
Ist  pre.  5th    '•  Anne  Aran.  " 


11,  681,  17,  2»5,  291,  293,  328, 

420,504,505,508,510. 
13,682,17,286,291,292. 

13,  683, 17, 286,  291.  292.  329. 

14,  676.  17,  2)-6.  -.'92,  329,  508. 
18,  4;!,  6h0, 285. 
19,655.20.21.23,24,42. 

20,  22,  23, 24.  6.-.6, 42, 44. 
20,22,23,24,657,41. 

25,  659,  26. 

26,  27,  661. 

27,  28.  661. 

28,  662. 
29, 663. 

30,31,34,35.36.39.5,665. 
31,665,35,36,307. 

32,  666- 

32, 33,  667,  3§. 

33,  .34.  668,  36. 
34. 36.  43,  670. 
36.245,710. 

45, 46, 677, 330, 500. 

47.  689,  •..'97,  3.'7. 
49,  51,  685, 298,  558. 

49,  236. 684.  298. 

50,  679,  3:i9. 
50,  676,  3;i0. 

48,  236,  686,  298,  559j 

52,  687,  327. 

53,  688,  327. 
235,  678, 330. 
216  24«. 

246,  247, 251. 

247,  249. 

247,  252. 

248,  250. 
265, 650,  587. 
266,  652, 587. 
266, 587. 
268,  269, 653. 
165,  672. 


Four  in  rebuttal. 


Adams,  Wm 

Jessop,  Jeremiah  M 

Holt,  Levi  G 

Carter,  Francis  H . . , 


1  P.  1  D.  Bait.  Co 

8  D.  Anne  Amndel  Co  . 
8D.  •'  "  '•  . 
7  D.  St  Mary's  Co 


393,  394, 493  555. 
5,56,  792. 
556,  557,  790. 
575, 576, 594. 


MUDD    VS.    COMPTON. 


155 


And  contestee  gains  17  such  votes,  those  of  Benj.  F.  Chappeh^ar,  B. 
F.  Gover,  Clifford  Sweeney,  Woi,  K.  Dawson,  Ferdinand  E.  Burch, 
Ghas.  F.  Burler,  John  E.  Garnett,  Jas.  W.  Wheatley,  Dalton  Howard 
Fisher,  John  H.  Iglebart,  Andrew  M.  Lainhart,  Edward  Woods,  John 
M.  Todd,  John  H.  Turner,  Chas.  W.  McGready,  liichard  H.  Carter,  John 
Kalb. 

The  committee  considers  there  is  no  sufficient  evidence  that  Albert 
F.  Berry  was  a  registered  voter  at  the  time  he  offered  to  vote  or  that  he 
had  any  right  to  be  registered  ;  that  there  is  no  evidence  whatever  that 
John  T.  Butler  was  not  properly  stricken  off";  and  that  the  very  certifl 
cate  filed  by  the  contestee  to  prove  that  Chas.  H.  Soper,  James  R.  Ede- 
lin,  Wm.  E.  Thomas,  Francis  Tolson,  and  Audrew  V.  Convey  were  regis- 
tered voters,  shows,  in  fact,  that  these  men  never  were  entered  by  the 
officer  of  registration  as  qualified  voters  at  all.  The  law  of  Maryland 
(Code  of  Public  General  Laws,  article  33,  section  14,  record,  pages  624- 
625)  requires  the  officer  of  registration,  so  soon  as  an  applicant  of  regis- 
tration presents  himself  and  before  he  is  sworn,  to  write  down  his  name. 
}heofficer  then  swears  him  and  examines  him,  and  if  he  findsheisquali- 
led,  he  again  writes  his  name  in  the  column  of  qualified  voters. 

The  certificate  filed  (record,  page  580)  indicates  that  the  names  of 
khese  men  were  not  entered  in  this  column.  None  of  them  were  ex- 
uuined  personally,  and  there  is  no  evidence  that  they  were  by  law  en- 
itled  to  registration.    (See  record,  pages 468-70,  where  all  the  evidence 

)ncerning  sa'd  persons  is  set  forth.) 

There  is  another  class  of  cases  in  which  the  judges  rejected  votes  be- 

luse  of  real  or  assumed  doubts  as  to  the  identity  of  the  voters  present- 
ig  themselves.     Where  their  identity  is  clearly  established,  these  votes 
'must  be  counted  for  the  candidate  for  whom  they  were  tendered. 

Under  this  ruling  the  contestant  gains  4  votes,  whose  names,  with 
similar  references  as  above,  are  as  follows : 


!Naine  of  Toter. 


Connty,  city,  ward,  or  district. 


^-.2 


Pages  of  Kecord. 


Bell,  ThomaB 1st  pre.,  13th  dist.  Balto.  Co  . . 

Booth,  Samuel  H I  lat  pre.,  17th  ward,  Balto.  City 

Cooper,  Gnstavns  Elzear  . . .  i  5th  dist.  St.  Mary'.s  Co 

Weems,  Wm.  Chapman i do  - '. 


16, 17, 67.3,  286,  287,  288, 

292,505,508,510. 
20,  22,  23,  24,  658, 42, 45. 
267,  «49,  269,  587. 
269,  270,  654,  587. 


The  contestee  recounted  the  ballots  at  the  sixth  and  seventh  precincts 
of  the  fifteenth  ward,  of  the  first  precinct  of  the  sixteenth  ward,  and 
of  the  first,  second,  third,  fourth,  fifth,  sixth,  seventh,  eighth  precincts 
of  the  seventeenth  ward  of  Baltimore  City,  and  of  the  first  district  of 
Baltimore  County,  tie  asked  for  the  recount  in  his  answer,  but  with 
the  excepriouof  the  first  precinct  of  thefirstdistrict  of  Baltimore  County, 
and  the  first  precinct  of  the  sixteenth  ward  of  Baltimore  City,  he  laid  no 
foundation  for  a  recount  by  showing  any  ground  to  suppose  that  a  mis- 
take had  been  made.  All  the  presiding  judges  examined  by  the  contes- 
tee himself  were  Democrats,  as  were  the  majority  of  the  judges  in  each 
of  the  precincts  recounted.  All  the  judges  examined  swore  that  they 
believed  their  count  was  correct.  It  is  a  strange  circumstance  that 
these  Democratic  judges  should  have  uniformly  made  mistakes  to  the 
prejudice  of  their  own  candidate.    The  pfficers  in  whose  custody  the 


156  MUDD   VS     COMPTON. 

boxes  were,  between  tbe  election  and  the  recount,  were  all  Democrats. 
Thecontestee  recounted  some  precinctsofa  ward  and  not  others,  and 
there  is  not  a  sbred  of  evidence  to  show  why  some  were  recounted  and 
otiiers  not.  It  is  clear  that  if  any  one  had  access,  even  tor  a  few  mo- 
ments, to  tbe  ballot-boxes,  they  could  have  been  opened  and  their  con- 
leuts  altered  and  then  closed  again  without  leaving  any  trace  of  dis- 
turbance. 

The  contestee  gained  19  votes  on  the  recount.  These  votes  we  allow 
him,  although  we  feel  that  there  is  something  very  curious  about  the 
whole  matter.  We  allow  contestee's  claim,  based  on  a  recount,  that  a 
vote  should  be  deducted  from  the  contestant  in  the  ninth  district  of 
Charles  County,  making  a  loss  to  the  contestant  of  20  votes  on  the  re- 
count. The  committee  also  allows  contestee  a  vote  he  claims  he  should 
gain  in  the  seventh  district  of  St.  Mary's  County  upon  which  his  name 
was  written  and  that  of  the  contestant  is  claimed  to  have  been 
scratched,  although  there  is  no  allegation  in  the  answer  of  contestee 
under  which  the  proot  of  either  of  these  votes  is  strictly  admissible. 

We  deduct  from  the  toutestee  1  vote  in  the  second  district  of  Cal- 
vert County,  being  satisfied  that  there  was  counted  for  the  contestee  a 
ticket  from  which  his  name  was  scratched.    (Record,  pages  271-273.) 

Under  the  above  rulings  the 

Coatestant  having  on  the  face  of  the  return. .. , 16,283 

Gains,  votes  rejected  becanee  some  one  had  illegally  voted  on  the  voter's  name  6 

Votes  rejected  becanse  of  inaccuracies  of  poll  and  registration  books 44 

Votes  rejected  because  oi  a  doubt  as  to  identity  of  voters 4 

16, 337 
And  loss  on  recount 20 

16.317 

Contestee  having  on  the  face  of  the  return. 16, 2SI 

Gains,  one  vote  in  Seventh  district  of  St.  Mary's  County 1 

Votes  rejected  because  of  inaccuracies  on  poll  or  registration  books 17 

16. 299 
Vote  rejected  because  of  doubt  as  to  identity  of  voter 1 

16,300 
Loss,  one  vot«  in  Calvert  County 1 

16, 29I» 

The  contestant,  who  had  two  plurality  on  the  face  of  the  returus, 
makes  a  net  gain  by  correcting  these  individual  errors  of  sixteen  votes 
and  his  plurality  stands  at  eighteen  votes  ;  this,  too,  aiter  allowing  the 
cont<?stee  all  he  can  possibly  claim,  and  more  than  we  think  the  strict 
and  perhaps  safe  rule  of  law  would  authorize. 

Furthermore,  if  every  one  of  the  other  votes  which  the  contestee  claims 
(but  which  the  committee  does  not  allow  him)  were  given  him,  the  only 
effect  would  be  to  reduce  the  contestant's  plurality  and  would  not  affect 
the  final  result. 

INTIMIDATION    OF    CONTESTANT'S    SUPPORTERS  BY    THOSE     OF     CON- 
TESTEE. 

The  committee  finds  that  the  votes  of  the  first  precinct  of  the  third  dis- 
trict of  Anne  Arundel  County  should  be  tiirown  out.  The  vote,  as  re- 
turned in  this  precinct,  was  168for  the  contestee  aud32  for  the  contestant. 
The  undisputed  facts  concerning  this  precinct  are,  that  there  were  regis- 


MUDD    VS.    COMPTON.  .  157 

tered  therein  475  persons,  252  of  whom  were  white  and  223  colored  ;  that 
of  these  475  only  206  voted,  and  of  those  who  voted  191  were  white  men, 
and  15  were  colored ;  that  when  the  polls  opened  4  white  men  voted, 
then.  15  colored  men,  and  then  187  white  men.  The  contestant  has  ex- 
amined 175  colored  voters  of  this  dis'trict  who  did  not  vote ;  of  these  175 
161  were  on  the  polling  ground  ;  many  of  these  wallied  or  rode  many 
miles  to  the  polls,  and  some  who  were  temporarily  away  from  home  re- 
turned from  Baltimore,  Annapolis,  Steeltou,  and  other  places  to  vote. 
All  of  these  men  swear  that  they  wanted  to  vote  (and  most  of  them 
were  at  the  polls  with  their  tickets  in  their  hands  for  the  purpose 
of  voting)  for  the  contestant;  14  others  swear  that  they  started  from 
their  homes  and  walked  a  greater  or  less  distance  towards  the  polls 
and  then  turned  back,  in  consequence  of  what  they  heard  as  to  the 
proceedings  at  the  polls. 

There  is  no  dispute  that  there  were  present  at  the  polling  place,  from 
before  the  opening  of  the  polls  at  8  o'clock  in  the  morning  until  late  in 
the  afternoon,  a  number  of  persons  who  were  not  residents  of  the  pre- 
cinct ;  that  those  of  them  who  were  identified  were  residents  and  regis- 
tered voters  of  Baltimore  City,  and  that  they  drove  down  from  Balti- 
more, reaching  the  polls  before  any  of  the  voters,  and  drov^e  back  in  the 
late  afternoon ;  that  those  men,  or  some  of  them,  wore  badges  with  the 
words  '' TJ.  S.  deputy  marshal"  upon  them,  and  claimed  to  be  such; 
that  this  claim  was  altogether  false ;  that  these  men  were  armed  with 
pistols,  which  at  certain  periods  of  the  day  they  were  firing  within  the 
hearing  of  the  polling  place;  that  there  were  a  number  of  guns  in  a 
wagon  which  brought  them  from  Baltimore;  that  before  the  polls  opened 
they  placed  themselves  within  a  few  feet  ol  the  window  at  which  the 
citizens  were  to  vote,  and  that  in  a  very  few  minutes  after  the  polls 
opened  they  seized  and  dragged  from  the  line  two  or  more  colored  voters 
(among  them  a  man  of  some  seventy  years  of  age,  a  large  property 
owner  and  tax  payer,  a  resident  of  the  district  for  twenty- five  years, 
and  a  universally  respected  citizen),  and  told  them  that  they  could  not 
vote.  The  person  just  referred  to  (who  from  age  and  standing  was  evi- 
dently the  most  influential  colored  man  present)  asked  if  the  colored 
people  were  not  to  be  allowed  to  vote,  when  the  crowd  from  Baltimore 
answered,  "  Not  a  damn  nigger  shall  vote  unless  he  votes  for  Cleve- 
land." The  old  colored  leader  then  told  the  other  colored  men  not  to 
make  a  fuss,  but  as  they  could  not  vote  to  go  away  peaceably.  A  num- 
ber of  them  did,  but  the  larger  number  remained  about  the  polling  place 
for  some  time  longer  and  occasionally  one  of  them  would  attempt  to 
reach  the  polling  place. 

In  every  such  instance  they  were  met  by  some  one  of  the  strangers 
or  by  one  of  the  well-known  Democratic  leaders  of  the  precinct,  and 
told  that  they  could  not  vote ;  and  when  they  still  pressed  on,  they 
were  struck  at  and  compelled  to  fall  back.  A  number  of  colored 
voters  still  remained  in  the  neighborhood  of  the  polls,  and,  in  order  to 
get  them  away,  the  leader  of  the  Baltimore  gang— a  man  whom  the 
witnesses  all  call  "  Tip  Wells, "  but  whose  real  name  is  proved  to  be 
John  H.  Wills — told  a  man  named  Ed.  Pumphrey,  a  resident  of  the 
neighborhood,  to  go  amoiig  the  negroes,  tell  them  that  there  was  a 
gang  of  roughs  from  Baltimore  there,  that  they  had  guns,  and  that 
more  were  coming  down  from  Baltimore  in  the  next  train,  and  that  they 
would  have  to  fight  these  armed  men  if  they  wanted  to  vote ;  Pumph- 
rey went  down  to  where  the  negroes  were,  moved  around  among  them, 
telling  them  what  Wells  directed  him  to  tell,  and  adding  that  he  was  a 
deputy  sheriff,  that  he  could  not  protect  them,  and  if  they  took  his  ad- 


158  MUDD    VS.    COMPTON. 

vice  tliey  would  go  home.  He  then  came  back  and  reported  to  those 
who  8eiit  bim  what  he  had  done.  Fifty  or  more  of  the  colored  voters 
testitled  that  they  heard  Puraphrey  telling  them  to  go  home  ;  that  there 
was  a  wagou-load  of  roughs  there  with  guns,  and  that  more  were  com- 
ing, etc. 

To  rebut  all  this  testimony  the  contestee  produced  a  number  of  wit- 
nesses who  say  tliat  they  saw  very  little  trouble;  that  if  the  colored 
people  had  insisted  on  voting  they  think  they  could  have  done  so,  but 
the  contestee  did  not  put  upon  the  stand  a  single  man  whom  the  wit- 
nesses for  the  contestant  identified  as  having  interfered  with  the  rights 
of  the  colored  llei)ublican  voters.  "Tip  Wells,"  the  leader  of  the  Bal- 
timore gang,  was  appointe<;l  a  few  weeks  after  the  election,  by  the  Dem- 
ocratic collector  of  internal  revenue,  a  store-keeper  iu  the  internal-reve- 
nue service;  and  though  lie  could  have  been  summoned  at  any  time  to 
deny  the  charges  made  against  him,  or  to  explain  what  he  and  his  fol- 
lowers were  doing  on  election  da^',  he  was  not  put  on  the  stand.  Frank 
Chairs,  another  Government  employ*?,  and  a  resident  of  the  precinct, 
was  proved  to  have  taken  part  in  the  series  of  acts  which  intimidated 
the  colored  voters,  but  he  was  not  examined  by  the  contestee.  William 
Chairs,  who  caught  hold  of  oue  negro  who  went  up  to  vote  and  jerked 
him  back,  and  who  was  the  Democratic  leader  in  the  precinct,  was  in 
the  room  when  the  testimony  was  being  taken,  coaching  the  counsel 
for  the  contestee,  but  he  was  not  examined. 

The  pseudo  Deputy  Sheiitt"  Pumphrey,  who  played  such  a  large  part 
in  the  plot,  was  not  examined.  These  men,  and  these  alone,  could 
have  rebutted  the  grave  statements  made  by  the  contestant's  witnesses, 
but  they  were  not  put  forward  to  do  it.  Tfie  persons  who  interfered 
with  the  election  did  so  in  the  interest  of  the  Democratic  candidates, 
and  their  declaration  that  "  not  a  damn  negro  shall  vote  unless  he  votes 
for  Cleveland"  was  not  an  empty  threat,  for  the  Democratic  negro, 
Jackson,  as  he  himself  testified  '^record,  page  148),  got  his  ticket  from 
one  of  the  gang,  and  according  to  another  witness  (record,  page  242), 
they  held  hi  in  up  to  the  window  to  vote.  The  contestee  claims  that  if 
this  were  all  so,  the  negroes  had  physical  force  enough  to  have  voted 
if  they  had  persisted  in  doing  so.  The  committee  liolds  that  a  citizen 
has  a  right  to  a  free  and  unmolested  approach  to  the  ballot-box,  and  is 
not  bound  to  fight  his  way  to  a  polling  window,  especially  when  to  do 
so  he  must  come  into  conflict  with  persons  who  claim  to  be  officers  of 
the  law,  the  truthfulness  of  which  claim  he  has  no  means  of  negativing, 
and  that  a  candidate  whose  supporters  have  done  all  in  their  power  to 
make  voters  believe  that  they  would  suffer  injury  if  they  attempted  to 
vote,  can  not  be  heard  to  say  that  the  intimidated  voters  should  not 
have  believed  the  threats  made  to  them.  The  coutestee's  majority  in 
the  precinct  as  returned  was  136.  The  contestant  proves  by  the  voters 
themselves  that  he  lost  at  least  175  votes  as  a  result  of  this  intimida- 
tion; the  intimidation  existed;  it  changed  the  result  in  the  precinct, 
and  the  vote  of  the  precinct  must  be  excluded  from  consideration. 

MISCELLANEOUS. 

The  evidence  offered  by  the  contestee  to  show  that,  in  various  pre- 
cincts and  districts,  his  colored  supporters  were  intimidated  by  those  of 
the  contestant,  is  of  altogether  too  vague  and  unsubstantial  a  character 
to  d.  serve  consideration.  Only  one  colored  man  testified  that  he  wanted 
to  vote  for  the  contestee  and  was  prevented  from  doing  so  by  intimida- 


MUDD    VS.    COMPTON.  159 

tion ;  and  he,  on  cross-examination,  adaiitted  that  he  intended  to  vote 
for  the  contestee  because  he  had  been  promised  $2  or  $'3  for  so  voting. 

The  committee  can  see  no  ground  upon  which  the  contestee's  claim, 
that  the  eighth  district  of  Anne  Aruudel  County  should  be  thrown 
out,  can  be  sustained.  It  is  not  charged  that  any  illegal  votes  were  re- 
ceived, or  counted,  or  that  legal  voters  (except  those  whose  votes  were 
refused  because  of  inaccuracies  on  the  poll-books,  and  whose  votes 
have  already  been  allowed  contestee  and  contestant  respectively)  were 
prevented  from  voting. 

The  committee,  therefore,  concludes  that — 

Contestant  having  ou  the  face  of  the  precinct  returns 16,283 

Gains — 

Votes  of  voters  whose  votes  were  refused  because  it  was  alleged  that  other 

persons  had  voted  on  their  names 6 

Votes  of  voters  whoso  votes  were  refused  because  of  inaccuracies  oq  poll 

or  registration  books 44 

Votes  of  voters  whose  votes  were  rejected  because  ot  doubt  as  to  their 
identity 4 

16, 337 
Loses — 

Votes  on  recount 20 

Votes  returned  for  him  in  first  precinct,  third  district  of  Anne 
Arundel  County 32 

52 

True  vote  for  contestant - 16, 285 

Contestee,  having  on  the  face  of  the  precinct  returns 16,281 

Gains — 

Votes  of  voters  whose  votes  were  rejected  because  of  inaccuracies  on  poll 

or  registrat  ion  books 17 

One  vote  in  7th  district  of  St.  Mary's  County 1 

Vote  of  voter  whose  vote  was  rejected  because  of  doubt  as  to  his  identity.  1 

16, 300 
Loses — 

Votes  in  second  district  of  Calvert  County 1 

Vote   returned  for  him  in  first  precinct,  third  district  of  Anne 
Aruudel  County *. 168 

169 

True  vote  for  contestee 16, 131 

Plurality  for  contestant 154 

The  contestant  has,  therefore,  upon  the  most  liberal  allowance  to  the 
contestee  and  after  the  decision  in  contestee's  favor  of  every  doubtful 
point,  a  clear  plurality  of  154  votes  and  is  entitled  to  his  seat. 

The  committee,  therefore,  reports  the  following  resolutions  and  rec- 
ommends their  passage: 

Eesolved,  That  Barnes  Compton  was  not  elected  as  a  Representative 
to  the  Fifty-first  Congress  from  the  Fifth  district  of  Maryland,  and  is 
not  entitled  to  the  seat. 

Besolvedj  That  Sydney  E.  Mudd  was.  duly  elected  as  a  Representa- 
tive for  the  Fifth  Congressional  district  of  Maryland  to  the  Fifty-first 
Congress  and  is  entitled  to  his  seat  as  such. 


VIEWS  OF  THE  MINORITY. 


1)  Ballots.    Best  evidence. 

The  ballots,  when  clearly  shown  to  be  the  identical  ballots  cast,  are 
the  best  evidence  of  the  vote, 

(2)  Returns.     Which  primary  evidence. 

The  county  returns  sent  to  the  governor  are  evidence  of  the  vote  of 
the  county  unless  shown  to  be  wrong  by  the  primary  evidence,  either 
the  ballots  themselves  or  the  count  made  by  the  judges  of  election  in 
each  precinct  at  the  close  of  the  election.  In  this  case  the  evidence 
offered  is  insufficient  to  overthrow  the  county  returns  of  Calvert  county. 

(3)  Votes.    Improperly  rejected. 

"  Whenever  a  voter  did  tender  his  vote  and  his  name  was  upon  the 
list  of  voters  furnished  to  the  judges  of  election,  although  the  middle 
name  or  initial  might  be  wrongly  entered,  still  his  vote  should  be 
counted  as  it  should  have  been  received  by  the  judges,  the  object  of' 
registration  being  for  the  purpose  of  identification  of  a  voter,  or  if  the 
name  given  by  the  voter  was  idem  sonans  with  the  name  registered. 
♦  *  *  The  vote  of  no  person  whose  name  did  not  appear,  either 
properly  or  at  least  by  Hdein  sonans,^  could  have  been  received  by  the 
judges,  nor  can  they  be  counted  by  us." 

(4)  Evidence.    In  rebuttal. 

Testimony  in  chief,  offered  in  the  time  for  rebuttal,  should  not  be 
considered. 

(5)  Intimidation.    Amount  of  violence  necessary. 

A  poll  can  not  be  rejected  for  intimidation  unless  there  was  such  a 
display  of  force  as  ought  to  have  intimidated  men  of  ordinary  firmness. 
There  was  no  such  intimidation  in  this  case. 

H.  Mis  137 11  161 


VIEWS  OF  THE  MINORITY. 


Mr.  MooEE,  from  the  Committee  on  Elections,  presented  the  following 

minority  report: 

The  minority  of  your  committee  feel  constrained  to  differ  with  the 
majority  in  their  conclusions  in  this  case,  and  submit  the  following  mi- 
nority report : 

The  undisputed  facts  are  that  by  the  returns  made  to  the  governor 
the  contestee  was  elected  by  a  plurality  of  181  voteis,  and  after  correct- 
ing these  returns  by  adding  the  votes  of  the  sixth  and  ninth  districts 
of  Charles  County,  the  plurality  of  the  contestee  was  29,  as  shown  by 
the  oflBcial  figures. 

It  is  also  true  that  there  was  an  error  in  the  return,  as  made  to  the 
governor,  from  the  first  precinct  of  the  Sixteenth  ward  of  Baltimore  City, 
by  which  the  contestant  was  allowed  223,  whereas  he  received  but  222 
votes,  and  his  total  of  15,819  is  made  by  allowing  him  this  vote.  This 
is  conclusively  shown  by  the  certified  copy  of  the  return  of  the  judges. 
(Record,  p.  609,  Exhibit  Compton,  14),  and  by  the  recount  (pp.  319,  616). 

The  vote,  therefore,  prior  to  the  recount,  stood  as  follows: 

Barnes  Compton— official 16,  000 

Add  vote  of  5th  district  of  Charles  County » 191 

Add  vote  of  9th  district  of  Charles  County 89 

Total 16,280 

Sydney  E.  Mudd— official 15,819 

Add  vote  of  5th  district  of  Charles  Connty 274 

Add  vote  of  9th  district  of  Charles  County 158 

16,251 

Deduct  one  vote  first  precinct,  Sixteenth  ward 1 

16,250 

Plurality  for  contestee 30 

2.  That  by  a  recount  of  the  ballots  the  contestant  loses  in  sixth  pre- 
cinct of  Ffteenth  ward  of  Baltimore  City  6  votes  (Record,  pp  616,  279, 
showing  recount,  and  pp.  726,  return  of  judges)  In  the  seveuth  precinct 
of  said  ward  3  votes  (Record,  pp.  283, 616,  727).  In  the  second  precinct 
of  ther  Seventeenth  ward  1  vote  (i^p.  305, 616,  730).  In  the  third  precinct 
5  votes  (pp.  307,  616,  731).  In  the  seventh  precinct  1  vote  (pp.  319,  616, 
735),  In  the  first  precinct  of  the  first  district  of  Baltimore  County  3 
votes  (pp.  647,  648,  741).  In  the  ninth  district  of  Charles  County  1  vote 
(pp.  467,  755). 

Each  gained  a  vote  in  the  fifth  precinct  of  the  Seventeenth  ward  and 
Compton  lost  1  vote.    Net  loss  to  Mudd,  19  votes. 

To  recapitulate : 

Vote  for  sitting  member  as  above 16,280 

Vote  for  contestant  as  above -- 16,250 

Deduct  net  loss  on  recount 19 

16,231 

Plurality  for  contestee  after  recount 49 

163 


164  MUDD   VS.    COMPTON. 

The  effect  of  the  contestant  has  been  to  show,  first,  that  there  was 
an  error  of  28  votes  in  Calvert  County;  secondly,  that  votes  were 
tendered  for  him  which  were  refused,  and  should  have  been  counted ; 
and  thirdly,  that  there  was  in  the  second  precinct  of  the  third  election 
district  of  Anne  Arundel  County  such  intimidation  as  should  justify 
the  throwing  out  of  the  vote  of  that  precinct. 

THE  EECOUNT. 

It  must  be  borne  in  mind  that  the  precincts  which  were  recounted 
(with  but  one  singrle  exception,  that  of  the  ninth  district  of  Charles 
County)  adjoined  the  precincts  forming  the  Fourth  Cougressional  dis- 
trict, in  the  city  of  Baltimore,  in  which  Mr.  Eayner  was  the  Demo- 
cratic candidate  and  Mr.  Stockbridge  the  Republican  candidate;  and 
that  the  discrepancy  between  the  vote  as  returned  and  as  recounted  is 
explained  by  the  fact  that  in  the  hurr^of  the  count  Republican  tickets, 
appearing  not  to  be  scratched,  were  counted  for  Mr.  Mudd,  while 
in  fact  on  many  of  the  tickets  was  printed  the  name  of  Mr.  Stockbridge. 

The  count  was  made  under  an  order  of  the  court,  as  authorized  by  the 
State  statutes,  it  was  made  in  the  presence  of  counsel  for  contestant, 
and  every  protection  was  thrown  around  it.  The  provisions  of  the 
State  law  iirovidiug  for  the  security  of  the  ballots  are  such  as  to  Insure 
their  protection,  and  the  evidence  clearly  shows  that  in  each  and  every 
case  the  law  was  strictly  followed.  We  can  not,  under  the  testimony, 
for  a  moment  doubt  that  the  ballots  counted  were  the  identical  ballots 
that  were  cast,  and  when  this  is  clearly  shown  the  ballots  are  the  best 
evidence  of  the  vote.  (McCrary,  Ed.  sees.  436-443,  and  533  ;  Paine  on 
Elections,  750;  Gooding  vs.  Wilson,  42d  Congress;  Smith, p.  80;  But- 
ler vs.  Lehman,  1  Bartlett,  353.) 

The  law  of  the  State  requires  the  ballot-boxes  to  be  made  securely  of 
plate  glass,  provided  with  locks ;  that  at  the  close  of  the  count  the 
ballot-box  shall  be  locked,  key  removed  therefrom  and  given  to  the 
minority  judge;  the  chief  judge  takes  the  ballot-box  for  safe-keeping, 
thereupon  the  judges  shall  all  write  their  names  on  a  strip  ot  pai)er 
of  suificient  length  for  the  following  purpose;  said  strip  shall  be 
pasted  over  the  key  hole  of  t':e  ballot-box  in  such  a  manner  that  the  sig- 
natures shall  extend  across  the  opening  iu  the  lid  (where  the  ballots 
are  dropped  in  in  voting),  and  so  that  when  the  key  is  inserted  it  will 
tear  the  paper  so  pasted  over  the  key-holes  ;  such  paper  shall  be  securelv 
fastened  to  the  box  with  sealing  wax  or  other  adhesive  material.  Within 
three  days  the  ballot-boxes  and  keys  in  Baltimore  City  shall  be  de- 
livered to  the  police  commissioners,  and  in  the  counties  to  the  clerk  of 
the  circuit  court,  and  the  boxes  shall  not  be  opened  for  six  months,  ex- 
cept by  order  of  the  court  or  a  judge  in  case  of  a  judicial  investiga- 
tion or  contested  election.  (Sections  79  and  80  of  article  33  Maryland 
Code  of  Public  General  Laws,  1888,  in  Record,  pp.  641  and  642.) 

We  submit  that  a  compliance  with  these  provisions  preserves  the 
ballots,  and  proof  of  compliance  therewith  negatives  any  claim  of  sup- 
liosed  tampering  or  handling,  and  is  the  strongest  possible  presumptive 
evidence  that  they  are  the  identical  ballots. 

The  contestee  proved  that  each  and  every  box  was  locked  and  sealed 
as  required  by  law,  delivered  to  the  chief  judge,  by  him  carefully  kept 
in  his  physical  custody,  and  in  Baltimore  city  delivered  the  next  day  to 
the  police  commissioners,  the  key  delivered  to  the  minority  judge  and 
by  him  delivered  to  said  police  commissioners,  and  iu  the  counties  de- 
livered to  the  clerk  of  the  court  two  days  thereafter  (the  testimony  as 


MUDD   VS.    COMPTON.  165 

to  tliese  focts  is  found  in  the  record,  pp.  277,  278,  280,  281,  301,  304, 
309,  310,  311,  312,  314,  315, 316, 447,  448).  This  testimony  is  conclusive 
aud  uncontradicted. 

He  examined  the  police  commissioners  of  Baltimore  City,  the  mes- 
senger or  officer  of  the  board,  the  clerk  to  the  board  who  was  in  office 
when  the  boxes  and  keys  were  delivered,  and  his  successor,  who  was 
in  office  at  the  time  the  recount  was  made,  proved  that  the  boxes  were 
placed  immediately  and  kept  in  a  prison  room  on  the  second  floor  of 
the  central  police  station  intended  for  a  cell;  that  the  door  of  this 
cell  or  room  was  locked  by  a  Yale  lock,  requiring  two  keys  to  open  it ; 
that  one  key  was  kept  by  the  secretary  of  the  board  in  the  safe  vault 
in  the  secretary's  office ;  that  this  vault  had  a  combination  lock,  and 
the  combination  was  known  to  no  one  except  the  secretary  and  marshal 
of  police ;  he  proved  by  the  two  secretaries  and  the  marshal  of  police 
that  no  one  had  access  to  the  vault  but  themselves,  and  that  it  was 
never  left  open,  and  contained  all  the  valuables  belonging  to  the  police 
board  of  the  city;  that  the  keys  of  the  ballot-boxes  were  placed  in  this 
vault,  aud  by  every  one  who  had  the  custody  of  the  boxes  aud  keys 
that  they  had  not  been  and  could  not  have  been  handled  or  tampered 
with.  Also,  as  each  box  was  produced,  that  they  bore  evidence  of  not 
having  been  tampered  with.  (Eecord,  pp.  276,  280,  282,  300,  304,  308, 
309,  413,  414,  415,  416,  417,  418.) 

In  first  precinct  of  first  district  of  Baltimore  County,  and  ninth  dis- 
trict of  Charles  County,  substantially  the  same  facts  by  the  clerks, 
deputies,  and  messengers — and  the  clerk  in  Baltimore  County  testified 
that  the  ballot-box  was  carefully  locked  up  in  a  press  by  reason  of  this 
contest  (Record,  pp.  444,  445,  446,  447,  448,  452,  460,  461). 

If  it  is  possible  to  prove  anything  has  been  carefully  and  securely 
kept,  it  has  been  proven  as  regards  these  ballots,  and  this  having  been 
proven,  the  primary  aud  best  evidence  of  the  true  vote  of  the  precincts 
recounted  has  been  given. 

It  manifestly  appears  that  the  judges  counted  for  each  and  every  Ee- 
publican  candidate  all  Eepublican  tickets  not  appearing  to  be  scratched, 
and  thereby  gave  Mudd  votes  in  cases  were  Stockbridge's  name  was 
printed,  and  which  votes  were  by  accident  or  design  thrown  away  on 
Stockbridge. 

THE  VOTE  OF  CALVERT  COUNTY. 

The  official  returns  as  made  to  the  governor  gave  Mr.  Mudd'  1,138 
votes,  and  Mr.  Compton  890  votes  (see  Eecord,  p.  613,  return  from  tlie 
judges  of  Calvert  County).  This  certificate  is  dated  two  days  after 
election  and  is  in  the  exact  form  prescribed  by  the  law  of  the  State. 
(Sec.  69 ;  Eecord,  p.  640.) 

It  is  therefore  evidence  of  the  vote  of  the  county  unless  it  is  shown 
to  be  wrong  by  the  primary  evidence,  either  the  ballots  themselves  or 
the  count  as  made  by  the  judges  of  election  in  each  precinct  at  the  close 
of  the  election. 

The  position  was  taken  by  the  contestee  that  the  evidence  offered  by 
the  contestant  to  set  aside  this  return  was  insufficient  and  inadmissible 
for  such  a  purpose.  The  testimony  of  the  contestant  rests  largely  upon 
the  recollection  of  the  very  same  persons  three  months  after  the  elec- 
tion who  two  days  after  the  election  certified  to  the  governor  that  Mr. 
Mudd  received  but  1,138.     (Eecord,  pp.  274  and  275.) 

The  majority  of  the  committee  insist  that  the  precinct  returns  estab- 
lish tiie  fjict.     (Eecord,  pp.  746-749.) 

It  will  be  seen  by  the  testimony  (Eecord,  pp.274,  275)  and  the  certifi- 


166  MUDD    VS.    COMPTO-N. 

cates  (Kecord,  pp.  74G-749)  that  these  copies  are  made  from  one  of  the 
books.  It  will  be  seen  by  reference  to  the  law  of  the  State  (Record,  p. 
G39,  sec.  66)  that  it  requires  two  plain,  fair,  and  distinct  statements  and 
certificates  of  the  number  of  votes  which  shall  have  been  given  "  to  be 
made  out  on  the  books  of  the  polls,"  and  the  law  requires  two  poll- 
books  at  each  poll.  These  two  statements  and  certificates  on  the  two 
poll-books  are  duplicates;  each  clerk  makes  out  one,  and  they  should 
agree.  A  copy  of  one  is  not  of  itself  evideuf»e.  To  set  aside  and  dis- 
prove the  solemn  return  of  the  return  judges  nothing  less  than  the 
j>roduction  of  the  two  "  books  "  or  certified  copies  of  the  duplicate  re- 
turns would  suffice.  Besides,  one  of  these  returns  is  an  imperfect  paper 
in  itself,  and  as  a  copy  is  no  evidence,  as  it  is  neither  certified,  as  required 
by  law,  nor  in  form  and  substance  what  the  law  requires  (Record,  pp. 
747,  639,  sec.  67). 

As  evidence  it  was  specially  excepted  to  by  the  contestee's  counsel 
(Record,  p.  779.) 

It  is  no  answer  that  the  contestee  might  have  shown  the  return  wrong 
if  such  was  the  fact ;  he  has  a  right  to  stand  upon  the  return  as  made 
to  the  governor  until  successfully  assailed. 

And  we  may  here  remark  that  the  return  judges,  who  made  the  re- 
turn to  the  governor,  were  all  Republicans,  and  it  is  not  to  be  supposed 
that  they  would  have  made  such  an  error  against  their  own  candidate. 
And  it  is  taxing  our  credulity  too  far  to  make  us  believe  such  a  mis- 
take has  been  made.  And  we  further  observe  that  in  this  instance  the 
copy  referred  to  in  giving  the  votes  is  expressed  only  in  figures,  very 
easily  changed  or  manufactured  whilst  in  the  custody  of  a  Republican 
clerk,  while  the  statute  says  it  "  shall  be  written  in  words  at  length 
and  not  in  figures  only." 

We  think  it  would  be  contrary  to  law  and  dangerous  in  practice  to 
allow  the  judges  of  election  three  months  after  the  election,  relying  on 
recollection  alone,  to  vary  their  return  based  upon  such  imperfect  and 
partial  testimony. 

KEJECTED  VOTES   CLAIMED  BY  EACH  SIDE. 

Both  the  contestant  and  contestee  claim  that  there  were  votes  tend- 
ered for  them  respectively  which  were  improperly  rejected  by  the 
judges  of  election. 

We  have  reached  the  conclusion  that  whenever  a  voter  did  tender 
his  vote  and  his  name  was  upon  the  list  of  voters  furnished  to  the 
judges  of  election,  although  the  middle  name  or  initial  might  be 
wrongly  entered,  still  his  vote  should  be  counted  as  it  should  have 
been  received  by  the  judges,  the  object  of  registration  being  for  the 
purpose  of  identification  of  a  voter,  or  if  the  name  given  by  the  voter 
was  idem  sonans  with  the  name  registered.  By  ap[)Iyiug  this  rule  a 
number  of  votes  claimed  by  each  side,  as  will  be  hereafter  shown, 
must  be  rejected. 

We  base  our  conclusions  upon  the  provisions  of  the  constitution  of 
Maryland  and  the  acts  of  assembly  governing  elections. 

The  constitution  of  the  State  (article  1,  section  1)  prescribes  the  quali- 
fications of  all  voters.  Section  5  of  the  same  article  provides  that  the 
general  assembly  shall  provide  for  a  general  registration  of  all  persons 
possessing  the  qualifications  prescribed  by  the  constitution  that  the 
registration  shall  be  conclusive  evidence  to  the  judges  of  the  right  of 
the  person  to  vote,  and  that  no  person  shall  vote  whose  name  does  not 
so  appear. 


MUDD   VS.    COMPTON.  167 

The  legislature,  in  accordance  with  these  provisions,  have  provided  for 
registration,  and  since  the  adoption  ot  the  constitution  of  1864,  in  which 
the  same  provisions  appear,  all  elections  have  been  held  under  registra- 
tion laws. 

The  judges  of  election  are  required  to  take  an  oath  to  "  permit  all 
persons  to  vote  whose  names  shall  appear  on  the  registry  or  list  of 
voters  furnished  to  him  according  to  law,"  and  that  he  ''  will  not  per- 
mit any  one  to  vote  whose  name  shall  not  be  found  upon  said  registry 
or  list  of  voters"  (record,  pp.  6,  36,  sec.  48). 

In  registering  voters,  the  register  is  required  to  enter  the  name,  giv- 
ing at  least  the  first  Christian  name  in  full,  color,  residence,  etc.,  showing 
street  and  number,  etc.,  of  the  applicant  (record,  p.  624,  sec.  14). 

The  vote  of  no  person  whose  name  did  not  appear,  either  projierly  or 
at  least  by  "  ide7n  sonans,"  could  have  been  received  by  the  judges,  nor 
can  they  be  counted  by  us. 

The  contestant,  on  pages  13  and  14  of  his  brief,  claims  forty  of  these 
votes;  we  allow  him,  for  the  reasons  stated,  the  following: 

M.  Hopkins.  James  E.  Kane.  George  H.  Mills. 

A.  W.  Herman  Miller.  William  H.  Hill.  William  T.  Richardson. 

Edward  Washington.  Jacob  Frank.  John  T.  Bowen. 

Daniel  E.  Gamble.  George  W.  Smith.  William  F.  Coats. 

Winfield  S.  Johnson.  William  H.  Brogden.  James  H.  Barnes. 

John  D.  Wilder.  Joseph  H.  Sampson.  In  all,  19. 

George  H.  Leutsche.  William  Alsop. 

We  reject  the  following,  as  their  names  were  not,  by  the  testimony  of 
the  contestant,  on  the  poll- book  or  list  of  voters  and  presented  no  cer- 
tificate as  required  by  law  (record,  p.  633,  sec.  34) : 

John  R.  Vitz  (25-659).  James  W.  Green  (50).  James  W.  Thomas  (247), 

Isaiah  Chester  (29-67).  John    Henry  Thomas   (4&-  Philip  Lvles  (247). 

John  H.  Costen  (32-667).  298).  William  Thomas  (248). 

David  W.  Leman  (45).  Philip  Gordon  (53-688).  David  R.  Brooks  (266). 

Aqnilla  Fishpaw  (49).  Ishmael  W.  Keller  (235).  Charles  W.Whittemore  (165). 

Lev  Cure  (49).  John  F.  Thomas  (246).  In  all,  18. 

James  W.  Clements  (50).  Augustin  Brown  (246). 

As  to  Benjamin  ¥.  Gamble,  he  does  not  prove  an  offer  to  vote  (record, 
p.  11).  The  judge  of  election  says  he  did  not  offer  to  vote  (291),  and 
his  statement  that  he  did  not  vote  because  Doctor  Hall,  the  registration 
officer,  said  his  name  was  not  on  the  list  is  contradicted  by  Doctor  Hall, 
who  testifies  he  was  not  at  the  polls  that  day  (328,  420). 

As  to  John  Taylor,  he  declined  to  vote  as  John  E.  Taylor,  the  only 
name  corresponding  to  his,  and  clearly  his  vote  can  not  be  counted 
(record,  p.  26, 27). 

As  to  Robert  Keed,  he  was  not  properly  identified  either  as  to  resi- 
dence by  street  and  number  or  age  (Record,  p.  36,  710).  He  was  reg- 
istered, if  at  all,  in  October,  1888,  as  fifty-four  years  of  age.  This  man 
gave  his  age  in  January,  1889,  as  fifty-eight  years  old — Robert  Reed, 
who  was  registered,  as  fifty-four  years  old  October,  1888. 

The  contestant  also  claims  6  votes,  on  page  12  of  his  brief,  which 
were  rejected,  as  he  admits,  because  these  parties  had  votf'd  or  others 
had  voted  on  the  names  and  they  were  checked  off  on  the  list  of  votes, 
namely,  William  Butler,  John  H.  Smith,  William  Brown,  Charles  H. 
Green,  Henry  Brown,  and  Thomas  Williams. 

If  when  these  parties  offered  to  vote  the  names  they  respectively  gave 
where  checked,  and  either  they  themselves  or  others  had  voted  on  their 
names,  the  judges  of  election  could  not  receive  their  votes,  for  the  reason 
that  otherwise  they  would  have  allowed  2  ballots  to  be  cast  by  one 
registered  voter.     We  therefore  reject  these  6  votes. 

As  to  the  4  votes  of  Thomas  Bell,  Samuel  H.  Booth,  Gustavus  B, 


168  MUDD    VS.    COMPTON. 

Cooper,  and  William  Chapman  Weems,  for  reasons  above  given,  we  al- 
low the  contestant  the  votes  of  Samuel  H.  Booth,  Cooper,  and  Weems, 
but  rejectthe  vote  of  Thomas  Bell,  because  he  was  not  identified,  (llec- 
ord,  pp.  286,  287,  288,  289-292.) 

As  to  the  3  votes  claimed  on  page  22  of  contestant's  brief  upon  no 
principle  of  fairness  can  they  be  allowed. 

Not  only  did  he  not  claim  them  in  his  notice,  but  he  attempted  in 
violation  of  every  principle  of  law  to  offer  this  testimony  in  the  time 
allowed  him  for  rebuttal  only.     (Rules,  p.  4.) 

This  testimony  was  in  each  case  specifically  excepted  to.  (Pp.  493, 
494,  556,  557.) 

The  attempt  to  make  this  claim  in  rebuttal  comes  directly  within  the 
case  of  Lynch  vs.  Vandiver,  Mobley,  p.  659,  in  which  the  committee  say 
that  "  testimony  ottered  in  rebuttal  which  seeks  to  establish  facts  not 
entered  into  in  the  direct  examination,  is  in  violation  of  every  known 
principle  of  the  laws  of  evidence,  and  will  not  be  considered." 

The  contestee  had  no  opportunity  to  show  that  these  parties  had  not 
tendered  their  votes,  or  any  other  evidence  tending  to  deny  the  claim 
made  by  contestant. 

The  contestant  in  his  brief  relies  upon  the  act  of  Congress  of  May  31, 
1870.  This  act  was  declared  unconstitutional  by  the  Supreme  Court. 
(United  States  vs.  Reese,  92  U.  S.  Rep.,  p.  214.) 

We  therefore  allow  the  contestant  19  of  the  votes  claimed  by  him  on 
pages  13  and  14  of  his  brief,  and  three  claimed  on  page  16  in  all,  22 
votes  claimed  by  contestee  to  have  been  wrongfully  rejected. 

Applying  the  same  rule  to  the  contestee,  we  allow  him  of  the  votes 
claimed  by  him  on  page  20  of  his  brief,  the  following:  Andrew  Laiu- 
hart,  George  H.  Cummings,  John  E.  Garuett,  James  W.  Wheatley,  John 
H.  Iglehadt,  William  K.  Dawson,  B.  L.  Gover,  Clifford  Sweeny,  Fer- 
dinand E.  Birch,  and  Benjamin  F.  Chappelear ;  in  all,  10  votes. 

We  rejectthe  following:  Charles  F.  Buckler,  Charles  W.  McCready, 
John  W.  Todd,  John  H.  Turner,  Richard  H.  Canter,  John  Kalb,  Ed- 
ward Woods,  Francis  Tolson,  James  Edelin,  Andrew  V.  Conway,  Charles 
Soper,  Albert  Berry,  and  Dalton  H.  Fisher,  because  their  names  were 
not  on  the  poll- book  or  list  of  voters. 

We  also  reject  William  K.  Thomas,  because  his  name  had  been  voted ; 
in  all,  14. 

VOTE    NOT  COUNTED    FOR    COMPTON   IN    SEVENTH    DISTRICT    OF   ST. 

MARY'S   COUNTY. 

The  contestee  is  clearly  entitled  to  this  vote,  his  name  was  written 
under  Mudd's,  and  the  writing  must  prevail.  (McCrary,  3d  edition,  sec. 
508.) 

Mudd,  therefore,  loses  one  vote  in  St.  Mary's,  and  Comptou  gains 
one. 

Contestant  claims  that  one  vote  for  Comptou  in  2d  district  of  Calvert 
County  was  scratched,  the  judges  helddifferently,  and  properly  counted 
the  vote  for  Compton.     (Record  271-272.) 

Weight  is  to  be  given  to  the  decision  of  judges  of  election.  (Mc- 
Crary, 3d  ed.,  465.) 

Contestant  claims  a  vote  for  him  was  wrongly  rejected  in  the  sixth 
district  of  Charles  County. 

A  paster  was  pasted  over  the  words  "  for  Congress."  The  testimony  of 
the  judges,  Sasscer  and  Cox,  clearly  shows  this  (record,  pp.  456-457), 
Article  33,  section  65,  Statutes  of  Maryland  (record,  p.  639),  required  the 
ticket  should  be  thrown  out. 


MUDD    VS.   COMPTON.  169' 

To  recapitulate — official  vote,  as  made  to  the  governor : 

Cwnpton 16,000 

Add  vote  of  CharleB  County 191 

Not  before  the  governor 89 

280 

Add  vote  for  "Compton" 1 

Add  1  vote,  seventh  district,  St.  Mary's  County 1 

Add  votes  allovi-ed.but  rejected  by  judges  of  election 10 

16,292 

Mudd,  official  vote 15,819 

Add  vote  of  Charles  County,  fifth  and  ninth  districts 4:52 

Add  votes  allowed,  but  rejected  by  judges  of  election 22 

Add  vote  for  "  Mudd,"  S.  N.  Mudd,  and  S.  E.  Mudd 3 

16, 276 
Deduct  loss  on  recount 20 

Deduct  1  vote,  seventh  district  of  St.  Mary's  County 1 

—         21 

16,255 

Plurality  for  contestee 37 

We  allow  in  this  enumeration  the  vote  for  "  Mudd,"  S.  N.  Mudd  and 
S.  E.  Mudd,  to  contestant's  and  also  allow  upon  che  same  ])riH(;iple  the 
vote  for  "  Compton  "  in  Prince  George's,  as  it  was  returned  to  the  gov- 
ernor, and  api)ears  on  the  certificate  (Exhibit  Comjitou  Ino.  1G),  as  filed 
in  evidence  before  the  committee. 

FIRST  PRECINCT   OF   THIRD   ELECTION  DISTRICT   OP    ANNE   ARITNDEL 

COUNTY. 

The  effort  of  the  contestant  has  been  to  reject  the  vote  of  this  pre- 
cinct upon  the  ground  that  there  was  such  intimidation  and  violence  as 
prevented  a  free  and  fair  election. 

The  law  is  well  settled  that  the  poll  can  not  be  rejected  unless  the 
violence  was  such  a  display  of  force  as  ought  to  have  intimidated  men 
of  ordinary  firmness.     (McCrary  on  Elections,  sec.  416,  2d  edition.) 

The  contestee  claims,  and  the  evidence  to  our  mind  sustains  the 
position,  that  no  such  intimidation,  force,  or  violence  was  resorted  to. 

The  evidence  shows  on  the  part  of  the  contestant — 

(1)  That  the  only  guns  on  the  ground  that  day  were  some  guns 
which  had  been  brought  there  byjjersons,  some  colored  and  some  white, 
who  were  on  their  way  gunning,  it  being  shown  to  be  a  long-established 
custom  of  many  voters  in  that  part  of  the  county  (white  and  colored) 
to  make  election  day  a  day  of  huntin  g.  That  the  only  pistol-shots  fi  red 
were  by  some  young  men,  nowhere  near  the  polls,  who  were  shooting 
at  a  mark. 

(2)  That  instead  of  it  being  true  that  there  were  any  such  acts  of  vio- 
lence as  were  calculated  to  intimidate  persons  of  ordinary  firmness,  the 
true  state  of  the  case  is  just  this :  1.  Not  long  after  the  polls  were 
opened  (they  were  opened  at  8  a.  m.)  and  after  some  few  white  men  had 
voted,  a  body  of  colored  men,  numbering  about  100  men,  who  had  as- 
sembled at  a  place  called  the  "  Mill  Pond,"  about  100  yards  from  the 
yjoUs,  marched  in  a  body  to  the  polling  place,  and  after  some  15  of 
them  had  voted,  2  of  their  number,  Hall  and  Andrew  Sampson,  who 
were  in  the  line,  were  by  some  young  man  standing  there  i)ushed 
or  shoved  out  of  the  line,  and  told  they  had  no  right  to  vote  there, 
and  thereupon  Hall,  whom  the  evidence  shows  had  taken  an  active 
part  in  distributing  tickets  among  the  colored  voters,  and  was  looked 


170  MUDD    VS.    COMPTON. 

np  to  as  a  leader  among  them,  after  addressing  certain  remarks  to 
those  around,  ordered,  according  to  a  large  number  of  the  witnesses, 
and  advised,  according  to  others,  the  whole  line  of  negroes  away  from 
the  polls,  which  order  or  advice  was  at  once  obeyed,  and  in  consequence 
of  this  order  or  advice,  which  was  subsequently  given  to  others  already 
at  the  polling  places  or  on  their  way  thereto,  nearly  every  one  if  not 
every  one  of  the  175  colored  people  referred  to  in  contestant's  allega- 
tion abstained  from  voting. 

(3)  That  according  to  some  of  the  witnesses  it  was  the  same  young 
man  who  i)ushed  or  threw  out  of  line  both  Hall  and  Sampson ;  but  at 
all  events,  according  to  the  evidence  of  a  number  of  the  contestant's 
own  witnesses,  the  whole  number  of  the  class  of  persons  described  by 
some  of  the  witnesses  as  "  strangers,"  and  by  others  as  "  roughs,"  and 
who  are  alleged  to  have  caused  the  intimidation  of  the  175  negro  voters, 
was  but  three. 

(4)  That  according  to  the  contestant's  own  proof,  there  were  from  50 
to  100  colored  voters  in  line,  when  the  two  men.  Hall  and  Sampson, 
were  shoved  or  pushed  out  of  line ;  and  this  number  was  further  in- 
creased shortly  after,  as  most  did  not  leave  the  grounds  till  after  12 
o'clock,  and  there  were  161  on  the  grounds  during  that  time. 

(5)  That  according  to  the  overwhelming  mass  of  evidence,  as  given 
by  the  contestant's  own  witnesses,  no  blows  were  struck  at  any  time, 
no  fire-arms  used  or  shown,  no  threats  of  personal  violence  made,  not 
even  the  hunting  guns  had  then  been  brought  to  the  grounds  when  the 
trouble  with  Hall  and  Sampson  took  place. 

(6)  According  to  the  contestant's  own  evidence  none  of  the  175  votes 
were  ever  tendered  to  the  judges ;  on  the  contrary  the  voters  a,dmit  that 
they  refused  to  tender  their  votes. 

The  three  judges  of  election  and  two  clerks  were  examined. 

The  contestant  examined  two  of  the  judges  of  election,  Hines  and 
Jubb;  Hines  is  a  Republican,  and  Jubb,  though  professing  to  be  a 
Democrat,  was  bitterly  opposed  to  Mr.  Compton.  All  the  judges  and 
clerks  were  appointed  by  the  county  commissioners  of  Anne  Arundel 
County,  all  of  whom  were  Eepublicans.     (Page  342.) 

At  the  close  of  the  polls  on  the  day  of  election  all  of  the  judges  of 
election,  without  protest  or  demur  of  any  kind,  signed  the  certificate  of 
election,  setting  forth  the  holding  of  the  election  and  the  number  of 
votes  each  candidate  had  received.    (Record,  page  718.) 

And  on  the  very  next  day  after  the  election  Hines.  the  Republican  j  udge, 
who  was  the  return  judge,  went  to  Annapolis  with  the  ballot-box  and 
election  returns,  and  there  told  Mr.  Sprigg  Harwood,  the  clerk  of  the 
circuit  court  for  Anne  Arundel  County,  to  whom  he  delivered  his  re- 
turns and  box,  "  that  there  had  been  no  trouble  about  the  polls ;  every- 
thing has  passed  off  peaceably  and  quietly."  (Record,  page  397.  See  also 
confirmatory  evidence  of  Woodward,  page  435.) 

Hines  testified  that  he  had  never  been  judge  of  election  before  (Rec- 
ord, p.  — ).  In  this  he  is  contradicted  by  a  large  number  of  witnesses, 
and  it  is  shown  that  he  had  been  judge  of  election  three  times  before. 
He  first  denied  he  had  made  any  statement  to  Mr.  Harwood.  He  after- 
wards said  he  told  Mr.  Harwood  the  election  was  not  fair,  and  when  re- 
called testifies  that  he  said  to  Mr.  Harwood  it  was  fair  inside  but  unfair 
outside.    He  contradicted  himself  so  much  his  .testimony  is  unreliable 

Thecontestee  examined  Charles  H.  Williams,  the  Democratic  judge, 
and  both  clerks.  Testimony  of  Charles  H.  Williams  was  that  he  was 
at  the  polls  and  in  the  room  from  before  the  polls  opened  till  the  ballots 
were  counted ;  that  he  neither  saw  nor  heard  any  disturbance.  (Record, 
pages  342-344.) 


MUDD   VS.   COMPTON.  171 

The  testimony  of  Dunlap  (p.  453)  and  Heath  (p.  376),  the  two  clerks 
of  the  election,  was  to  the  same  effect. 

Of  the  five  officers  of  election,  all  appointed,  as  shown  by  Williams's 
testimony  (p.  342),  by  the  Kepublican  county  commissioners,  three  tes- 
tified that  the  election  was  quiet  and  peaceable ;  and  two,  one  a  bitter 
personal  as  well  as  political  enemy  of  the  contestee,  and  the  other  con- 
tradicting himself  so  frequently  that  his  testimony  is  unreliable,  testi- 
fying that  there  was  a  disturbance. 

And  here  we  may  note  a  significant  fact,  that  the  contestant  in  an  ef- 
fort to  sustain  Jubb,  his  witness,  called  John  W.  Williams,  who  testifies 
that  while  he  would  believe  Jubb  and  Hines,  that  in  a  case  where  Will- 
iams and  others  testified  one  way  and  Hines  and  Jubb  to  the  contrary 
he  would  not  believe  .Jubb  and  Hines.    (Record,  p.  — .) 

The  testimony  of  this  army  of  negroes,  175,  who  were  there  or  near 
there,  shows  when  carefully  digested  that  they  did  not  vote,  because 
Hall,  the  captain,  ordered  them  not  to  vote.  (Record,  p.  92,  97,  98, 103, 
106,  107,  109,  116,  119).    The  following  is  a  sample  (206). 

The  testimony  of  contestee  shows  that  Hall  did  give  this  order  or 
advice,  and  for  this  reason  they  did  not  vote.  (Evidence  of  Chairs,  350; 
Wales,  361;  D.  H.  Williams,  366;  Henry  Johnson,  372;  Watson,  378; 
S.  W.  Chairs,  379;  Ellers,  38;  Porter,  384;  Brothe,  381.) 

The  testimony  of  Zachariah  Gray,  a  constable  (record  p.  357),  who 
was  there  all  day,  shows  that  the  only  pistol  fired  was  at  a  mark  100 
yards  from  the  polls,  and  that  he  stopped  it  because  it  frightened  the 
horses. 

The  only  pistol-firing  shown  by  contestant  is  the  evidence  of  William 
H.  Jubb  (p.  242).  He  testifies  that  others  were  present,  not  one  of 
whom,  though  examined  by  contestant,  testified  to  the  fact.  His  cross- 
examination  shows  him  to  be  a  man  of  no  character. 

If  the  principle  attempted  to  be  applied  by  the  majority  of  the  com- 
mittee is  adopted,  that  a  district  or  precinct  is  to  be  thrown  out  because 
a  number  of  voters  do  not  attempt  to  exercise  the  right  of  suffrage,  or 
because  a  leader  insists,  as  Hall  did,  that  those  of  his  own  party  shall 
not  vote,  all  that  will  be  necessary  in  the  future  to  deprive  voters  of 
their  choice  is  that  a  few  shall  desist  from  voting,  and  the  votes  of  the 
majority  will  become  nugatory. 

After  a  careful  review  of  the  entire  testimony  touching  the  matter  of 
intimidation,  we  think  that  acandid  and  fair  judgmentof  this  House  will 
be  that  it  is  insufficient  to  authorize  us  to  reject  the  votes  of  those  citizens 
who  did  cast  their  votes.  And  we  think  that  the  real  purpose  of  this 
man  Hall  in  collecting  his  negro  partisans  and  marching  to  the  polls  at  an 
early  hour  when  there  were  but  few  white  men  at  the  polls,  was,  in  fact, 
not  to  exercise  his  right  of  suffrage  orderly  and  peacefully,  but  to  seize 
any  trifling  circumstance  which  would  authorize  him  to  retire  and  give 
his  orders  to  his  followers  not  to  vote,  and  in  this  manner  to  so  antago- 
nize his  white  neighbors  as  to  have  them  disfranchised.  Therefore,  we 
recommend  the  passage  of  the  following  resolutions : 

Resolved,  That  S.  E.  Mudd  was  not  elected  as  a  Representative  to  the 
Fifty-first  Congress  from  the  Fifth  Congressional  district  of  Maryland. 

Resolved^  That  Barnes  Compton  was  duly  elected,  and  is  entitled  to 
retain  his  seat. 

L.  W.  Moore,  of  Texas. 
Charles  F.  Crisp. 
Charles  T.  O'Ferrall. 
Levi  Maish. 
B.  P.  C.  Wilson,  of  Missouri. 


FRANK  H.  THREET  vs.  RICHARD  H.  CLARKE. 

FIRST  ALABAMA. 


Contestant  charged  that  the  majority  returned  for  contestee  was 
obtained  by  systematic  fraud  on  the  part  of  the  officers  of  election  in 
counting  for  contestee  votes  in  fact  cast  for  contestant. 

The  committee  find  the  frauds  proved  in  the  testimony  insufficient  to 
overcome  the  majority  returned.  The  minority  agree  in  the  conclusion, 
but  announce  their  dissent  from  some  of  the  reasoning  by  which  it  is 
reached. 

The  resolutions  presented  were  adopted  by  the  House  March  7,  1890, 
without  debate  or  division.    See  Eecord  page  2007. 

(1)  Frauds.    At  prior  elections. 

Frauds  at  prior  elections  and  the  obstruction  to  the  taking  of  testi- 
mony in  prior  election  contests  may,  and  often  do,  throw  light  upon  the 
political  situation  in  a  community,  but  can  not  be  taken  as  an  excuse 
for  not  attempting  earnestly  in  subsequent  contests  to  comply  with  the 
rules  of  evidence.    Every  election  must  rest  upon  its  own  merits. 

(2)  Conspiracy.    Partisan  appointment  of  elections  boards,  evidence  of. 
Where  the  course  is  systematically  pursued,  of  appointing  on  the 

election  boards  to  represent  the  minority  or  opposition  party,  persons 
not  indorsed  by  that  party,  and  as  to  whose  loyalty  to  the  party  whose 
interests  they  are  expected  to  guard  there  is  a  question,  or  of  ai)point- 
ing  persons  who  are  unable  to  read  and  write,  when  there  would  be  no 
difficulty  in  finding  men  well  qualified  in  those  respects,  this  ought  of 
itself  to  be  considered  evidence  of  conspiracy  to  defraud  on  the  part  of 
the  election  officers. 

173 


HEPOKT* 


Febeuary  21, 1890. — Mr.  Haugen,  from  the  Committee  on  Elections, 
submitted  the  tollowing  report: 

The  Committee  on  Elections,  having  had  under  consideration  the  con- 
tested election  case  of  Frank  H.  Threet,  contestant,  against  Richard 
H.  Clarke,  contestee,  from  the  First  Congressional  district  of  Alabama, 
submits  the  following  report : 

The  contestant  and  contestee  were  the  Republican  and  Democratic 
candidates,  respectively,  for  Representative  in  the  Fifty-first  Congress, 
at  the  election  held  on  November  6,  1888.  The  contestee  received  the 
certificate  of  election,  has  duly  qualified  and  entered  upon  his  duties 
and  is  now  occupying  his  seat  as  Representative  of  the  district. 

The  certificate  of  the  secretary  of  state  showing  the  vote  cast  for 
contestant  and  contestee,  respectively,  reads  as  follows: 

The  State  of  Alabama, 
Office  op  Secretary  of  State. 
From  the  returns  made  to  this  office  by  the  boards  of  supervisors  of  the  various 
counties  composing  the  First  Congressional  district  of  Alabama,  it  appears  that  the 
following  votes  were  cast  for  a  Representative  to  the  Fifty-iirst  Congress  from  said 
district. 


Connties. 


Choctaw — 

Clarke 

Marengo  ... 

Mobile 

Monroe 

Waebington 


Candidates. 


R.  H.  Clarke. 


1,382 
1,564 
3,480 
3,220 
1,440 
507 


Frank  H.  Scatter- 
Threet.       ing. 


633 

1,234 

1,847 

2,408 

766 

217 


11, 593  7, 105 


I,  C.  C.  LangdoQ,  secretary  of  state,  do  hereby  certify  that  the  foregoing  is  a  cor- 
rect statement  of  the  returns  made  to  my  office,  as  required  by  law,  of  the  election 
held  on  the  first  Tuesday  after  the  first  Monday  in  November,  1888,  for  a  Represent- 
ative in  the  Fifty-first  Congress  of  the  United  States  from  the  First  Congressional 
district  of  Alabama. 

Witness  my  hand,  and  the  great  seal  of  the  State,  at  the  Capitol  in  the  city  of 

Montgomery,  this day  of ,  1888. 

C.  C.  Langdon, 

fSEAL."!  Secretary  of  State. 


175 


176  THREET   VS.    CLARKE. 

A  plurality  for  coutestee  of  4,488  on  the  face  of  the  returns.  This 
plurality  the  contestant  contend!^  was  obtained  by  systematic  frauds  on 
the  part  of  the  inspectors  and  clerks  of  election  in  counting  votes  in 
fact  cast  for  contestant  as  having  been  cast  for  coutestee  in  a  number 
of  precincts,  large  enough  to  have  elected  him  (contestant)  had  the  re- 
turns been  honestly  made.  The  contestant  in  his  brief  describes  the 
method  pursued  by  his  party  friends  at  the  polls,  and  the  evidence  he 
relies  upon  to  establish  the  charges  of  conspiracy  to  defraud  him  as 
follows : 

At  every  beat  or  voting  precinct  two  oi  more  leading  Republicans  would  give  out 
the  Republican  ballots  to  their  Republican  friends,  and  two  or  more  trusted  Repub- 
licans would  watch  and  witness  that  they  were  voted ;  each  kept  an  accnrato  account 
of  the  number  of  tickets  he  gave  out  and  the  number  he  saw  voted.  The  contestant 
put  these  witnesses  on  the  stand  to  prove  these  facts,  and  the  vote  proven  was  almost 
in  the  inverse  ratio  of  the  vote  as  counted  by  the  precinct  officers. 

Such  is  the  status  of  the  present  contest  and  mainly  the  character  of  the  testimony 
of  the  contestant. 

The  charges  of  contestant  are  confined  to  the  four  counties  of  Choc- 
taw, Clarke,  Marengo,  and  Monroe,  and  only  to  those  precincts  in  said 
four  counties  hereinafter  discussed. 

It  appears  upon  examination  of  the  evidence  that  the  contestant  has 
strictly  confined  himself  to  the  method  of  proof  described  in  his  brief. 

CHOCTAW  COUNTY. 

Mount  Sterling  heat. — The  contestant  charges  that  at  this  precinct 
he  was  deprived  of  fifty-nine  (59)  votes  for  the  reason  that  the  regular- 
ly appointed  registrar  refused  to  issue  to  that  number  of  Kepnblican 
voters  proper  certificates  of  their  registration.  It  seems  to  be  conceded 
by  witnesses  for  coutestee  that  59  voters  with  tickets  having  the  name 
of  contestant  upon  them  appeared  and  offered  to  vote,  but  were  refused 
because  they  could  not  furnish  certificates  of  registration,  the  registrar 
about  10  o'clock  a.  m.  refusing  to  issue  further  certificates,  stating 
that  he  wasi  out  of  blanks,  and  shortly  afterwards  being  called  away  ; 
that  several  hours  intervened  before  the  inspectors  offered  to  appoint 
another  registrar,  which  they  finally  did,  failing  however  to  find  any 
person  willing  to  serve. 

It  is  not  charged  that  the  registrar  acted  fraudulently  in  refusing  to 
continue  to  issue  certificates.  His  supply  of  blanks  seems  to  have 
been  exhausted,  and  he  was  called  away  to  attend  the  sick-bed  of  his 
father-in-law,  who,  in  fact,  died  a  few  days  later.  The  probate  Judge 
of  the  county,  who  was  present  according  to  his  own  testimony',  be- 
tween 3  and  4  o'clock  p.  m.,  with  the  consent  of  the  inspectors,  offered 
to  swear,  orally,  those  who  had  previously  voted  in  the  precinct,  and  the 
inspectors  offered  to  receive  the  votes  of  those  so  sworn. 

But  there  is  no  evidence  showing  how  many  of  the  fifty-nine  voters 
yet  remained  at  the  polls  or  how  many  of  them,  being  legal  voters,  had 
previously  voted  at  the  precinct. 

Section  2007,  Revised  Statutes  of  the  United  States,  reads  as  follows : 

Whenever  under  the  constitution  or  laws  of  any  State,  or  the  laws  of  any  Terri- 
tory, any  act  is  required  to  be  done  by  a  citizen  as  aijrerequisite  to  qualify  orentitle 
him  to  vote,  the  offer  of  such  citizen  to  perform  the  act  required  to  be  done,  shall,  if 
it  fail  to  be  carried  into  execution,  by  reason  of  the  wrongful  act  or  omission  of  the 
person  or  officer  charged  with  the  duty  of  receiving  or  permitting  such  ijerformaiice, 
or  offer  to  perform  or  acting  thereon,  be  deemed  and  held  as  a  performance  in  law  of 
such  act;  and  the  person  so  offering  and  failing  to  vote,  and  being  otherwise  quali- 
fied, shall  be  entitled  to  vot«  in  the  same  manner  and  to  the  same  extent  as  if  he  ba4 
in  fact  performed  sach  act. 


THREET    V8.    CLARKE.  177 

Under  this  law  the  59  votes  at  the  precinct  under  discussion  must  be 
counted  for  contestant. 

CLARKE  COUNTY. 

Gainesville  precinct. — Tlie  returning  officer  was  the  only  officer  of 
election  who  appeared  at  the  opening  of  the  polls  on  the  day  of  election. 

He  proceeded,  at  the  instance  ot  contestant's  friends,  to  appoint  three 
inspectors,  who  were  chosen  from  the  colored  party  friends  of  contest- 
ant.   These  appointed  two  clerks. 

This  was  in  pursuance  of  section  262,  Code  of  Alabama,  187G.  Two 
of  these  inspectors  and  one  of  the  clerks  testify  on  behalf  of  contestant, 
and  from  their  testimony  it  appears  that  the  election  proceeded  quietly 
until  about  3  o'clock  p.  m.,  when  during  a  lull  in  the  voting  and  following 
a  seemingly  well-established  custom  in  that  precinct,  the  elect  ion  officers 
opened  the  ballot-box  and  proceeded  to  count  the  votes  cast.  It  then 
transpired  that  none  of  the  inspectors  could  read  the  ballots.  This 
broke  up  the  election  and  the  ballot-box  was  carried  off  by  the  return- 
ing officer,  seemingly  without  protest  or  objection. 

One  of  the  inspectors  swears  that  llil  votes  had  been  cast  at  the 
time  the  balloting  was  interrupted.  His  testimony  also  tends  to  show 
that  four  of  these  were  white  men  and  the  rest  colored.  There  is  no 
evidence  showing  how  these  parties  voted. 

The  voters  were  not  called  as  witnesses,  and  no  effort  has  been  made 
to  ascertain  how  the  votes  actually  cast  stood,  and  the  committee  can 
find  no  precedent  for  counting  the  175  votes  claimed  by  contestant  for 
him.  If  these  votes  were  cast  for  him,  he  has  failed  to  show  it,  and  the 
failure  to  have  the  true  result  declared  was  caused  by  no  fault  or 
fraud  of  contestee  or  his  party  friends,  unless  the  failure  of  the  regu- 
larly appointed  inspectors  of  election  to  act  be  considered  a  fraud,  but 
wa.s  occasioned  wholly  by  the  illiteracy  of  the  party  friends  of  contest- 
ant. 

There  can  be  no  effective  citizenship  that  is  not  based  upon  intelli- 
gence and  education  sufficient  to  take  part  in  the  active  administration 
of  the  laws. 

MAEENaO   COUNTY. 

Dayton  beat. — Three  witnesses  testify  for  contestant  and  eight  for 
contestee  in  regard  to  this  precinct. 

The  precinct  returned  307  votes  for  contestee  and  87  for  contestant, 
while  contestant  claims  that  402  votes  should  be  returned  for  him,  and, 
because  of  frauds  committed  by  the  partisans  of  contestee,  none  sliould 
be  returned  for  contestee. 

Doc  Daniel,  a'  witness  for  contestant,  testifies  that  he  is  a  resident 
of  Dayton  beat,  has  lived  there  three  years  and  was  present  at  the  elec- 
tion in  question  : 

Quest.  Was  you  present  at  said  electiou?  And,  if  so,  state  how  many  votes  were 
polled  or  voted  bj'  the  qualified  electors  of  said  beat  on  said  day  for  said  office.  How 
many  of  said  votes  were  voted  or  polled  for  Frank  H.  Threet  for  said  office,  and  how 
many  for  Richard  H.  Clarke  ? 

Alls.  I  was  present;  three  hundred  and  eighty-seven  Republican  votes  and  eighty 
Democratic  votes  were  polled. 

Quest.  Whose  name  for  Congress  was  on  the  387  Republican  tickets  that  you  say 
were  voted  ? — Ans.  F.  H.  Threet. 

Quest.  Who  distributed  the  ballots  or  votes  with  Frank  H.  Threet's  name  on  them 
at  said  election  and  bi^at  on  that  day,  and  how  many  were  distributed? — Ans.  I  dis- 
tributed them  ;  I  can  not  tell  how  many  were  distributed. 

Quest.  Did  anybody  else  beside  you  distribute  any  of  said  votes  at  said  precinct  on 
that  day,  and,  if  so,  who  ?  How  many  did  you  distribute  ?— Ana.  Yes,  William  Math- 
ews and  Charley  Perkins ;  I  distributed  80. 

H.  Mis.  137 12 


178  THEEET   VS.    CLARKE. 

Qncst.  Whose  name  for  member  of  Congress  was  on  these  tickets  that  yon  and  the 
other  parties  distributed  as  you  say  ?  What  was  done  with  these  ballots  after  they 
were  distributed? — Ans.  F.  H.  Threet's  name  was  on  these  ballots,  and  they  were 
voted  after  they  were  distributed. 

Quest.  Who  acted  as  inspectors  at  said  election  and  who  acted  as  returning  officer 
and  clerks  and  to  what  political  partj'  did  they  respectively  belong  ? — Ans.  Mr.  R.  VV. 
Price,  H.  W.  Morgan,  and  W.  W.  Bruce  acted  as  inspectors ;  Alec  Archer  and  Capt. 
Harder  were  the  clerks ;  I  don't  know  who  was  the  returning  officer ;  they  all  belonged 
to  the  Democratic  party. 

Quest.  State  whether  the  votes  were  fairly  coaated  at  said  election  as  cast. 

Ans.  I  don't  know,  sir. 

Quest.  Did  any  one  keep  a  list  or  tally  of  the  names  of  the  persons  who  voted  for 
Frank  H.  Threet  for  said  office  at  said  election  and  precinct  ?  If  yea,  who  kept  such 
list? — Ans.  Nora  Walton  and  Lee  Parker  kept  a  tally  of  the  number,  bat  not  of  the 
names. 

Quest.  How  many  Democrats,  if  you  know,  lived  in  said  beat  on  the  day  of  said 
election,  and  how  mawy  of  them  voted  in  said  beat  on  that  day  ;  and  how  many  Re- 
publicans lived  in  that  beat  on  that  day,  and  how  many  of  them  voted  at  said  elec- 
tion for  Frank  H.  Threet  ? — Ans.  I  don't  know  how  many  Democrats  lived  in  said 
beat,  and  I  do  not  know  how  many  voted  on  that  day  ;  to  the  best  of  my  knowledge 
460  Republicans  lived  in  that  beat  on  that  day ;  387  of  them  voted  for  Frank  H. 
Threet. 

Quest.  How  many  of  said  votes  for  Frank  H.  Threet  did  you  see  cast  on  that  day  ? — 
Ans.  Seventy-five  (75). 

Quest.  Was  said  Threet  a  popular  or  unpopular  candidate? 

Ans.  He  was  a  popular  candidate. 

Quest.  Was  he  not  warmly  supported  by  the  Republican  party  in  his  district  t 

Ans.  Yes,  he  was  warmly  supported  by  the  Republican  party  that  day  in  his  dis- 
trict. 

Quest.  Tell  all  that  you  know  about  the  manner  in  which  the  election  was  held  in 
your  precinct;  if  there  was  any  intimidation  and  unfair  counting  of  the  vote;  tell  all 
you  know  about  it. 

Ans.  I  don't  know  if  there  was  any  intimidation  or  not;  I  don't  know  if  there  was 
any  uufair  counting  or  not ;  so  far  as  I  know  about  the  conducting  part,  I  give  one 
man  a  ticket,  and  Israel  Clarke  came  and  took  the  man  away  from  nie,  and  took  the 
ticket  away  from  him  and  scratched  something  on  it,  and  I  didn't  know  what  until  he 
came  back  to  me  and  gave  the  ticket  back  to  me ;  Israel  Clarke  had  scratched  out 
two  names  on  the  ticket  that  I  gave  the  man ;  the  names  were  F.  H.  Threet  and  Mr. 
Williams;  I  took  the  ticket  from  him  and  he  went  on  with  Israel  Clarke. 

Cross-examination : 

Quest.  How  do  you  distinguish  a  Democratic  ticket  from  a  Republican  ticket? — 
Ans.  I  look  at  thera  with  the  names  on  them ;  one  is  longer  than  the  other. 

Quest.  Do  you  tell  them  by  the  names  on  them,  and  the  length,  too  ? — Ans.  Yes. 

Quest.  Which  is  the  longest,  the  Democratic  or  Repnblican  ticket  ? — Ans.  The 
Democratic. 

Quest.  How  many  Democratic  tickets  did  you  see  that  day  ? — Ans.  About  300. 

Quest.  How  many  Republican  tickets  did  you  read  that  day? 

I  read  75. 

Quest.  How  far  were  you  standing  from  the  i)oll8? — Ans.  About  9  to  10  steps,  all 
day  long. 

Quest.  Did  you  see  Wash.  Jones  ou  that  day  ? — Ans.  Yes,  sir. 

Quest.  What  was  he  doing  on  that  day  ? — Ans  He  was  distributing  tickets — Re- 
publican tickets. 

Quest.  How  many  of  the  tickets  he  distributed  did  you  read  over  or  measure  ? — Ans. 
I  did  not  read  over  or  measure  any  ;  but  they  came  from  the  same  package  as  those  I 
distiibuted. 

Quest.  How  far  was  Wash.  Jones  standing  from  the  polls? — Ans.  He  was  standing 
9  steps  from  the  polls  and  about  6  steps  from  me,  and  opposite  to  me. 

Quest.  Was  there  not  another  election  officer  at  the  election  at  Dayton  that  day 
that  you  have  not  mentioned? — Ans.  Nary  oue  that  I  remember. 

Quest.  Was  not  Jack  Crawford  an  officer  of  that  election  ? — Ans.  He  was. 

Quest.  What  are  Jack  Crawford's  politics  ? — Ans.  Republican. 

Quest.  How  long  have  you  known  Jack  C  rawford  ?— Ans.  Three  years. 

Quest.  Do  you  know  his  general  character  in  the  community  in  which  he  lives  f^ 
Ans.  Yes,  sir. 

Quest.  Is  it  good  or  bad  ? — Ans.  As  far  as  I  know  it  is  very  good. 

Quest.  Do  you  know  the  characters  of  Robt.  W.  Price,  Henry  W.  Morean,  W.  W. 
Bruce,  C.  H.  Askew,  A.  H.  Archer,  and  Capt.  Harder  in  the  community  in  which 
they  live  ? — Ans.  I  do. 


THREET   VS.    CLARKE.  179 

Quest.  Is  the  character  of  each  oue  of  them  good  or  bad  ? — Ans.  Very  good. 

Quest.  Could  you  select  from  the  neighborhood  of  Daytou  beat  six  nieu  that  stand 
higher  in  that  community  as  goodcitizeus  and  men  of  integrity  ? — Ans.  I  could  not. 

Quest.  Do  you  know  the  Rev.  Mr.  Moreland  ? — Ans.  I  do ;  I  am  not  a  member  of 
his  church. 

Quest.  Do  you  know  Israel  Cla.rke? — Ans.  I  do. 

Quest.  Do  you  know  his  general  character? — Ans.  Yes;  he  stands  as  high  in  that 
community  as  any  man,  colored  or  white. 

Quest.  What  are  his  politics? — Ans.  Democratic. 

Quest.  How  long  has  he  been  a  Democrat  ? — Ans.  I  don't  know  sir. 

Quest.  How  did  he  vote  in  the  last  election  ? — Ans.  Democrat. 

Quest.  What  do  you  mean  by  Democrat  ? — Ans.  He  voted  a  Democrat  ticket ;  one 
of  the  long  tickets. 

Quest.  Why  did  he  vote  Democratic  in  this  last  election  ? — Ans.  I  don't  know. 

Quest.  How  has  Israel  Clarke  voted  since  he  was  twenty-one,  up  to  the  present 
time  ? — Ans.  I  don't  know. 

Quest.  How  many  times  has  Frank  Threet  run  for  Congress  in  this  district? — Ans. 
I  don't  know. 

Quest.  Do  you  know  Sam  Williams  ?— Ans.  Yes,  sir. 

Quest.  Were  you  at  the  meeting  at  the  church  the  night  before  the  election;  was 
Sam  Williams  there  ?  < 

Ans.  I  was;  I  didn't  see  Sam  there. 

Quest.  Was  Sam  Williams  one  of  the  387  that  you  say  voted  for  Threet? — Ans.  He 
was  not. 

Quest.  At  the  meeting  held  at  the  church  the  night  before  the  election  were  not 
the  voters  present  sworn  to  vote  the  Republican  ticket  the  next  day? — Ans.  They 
■were  not. 

Quest.  How  many  were  present  ? — Ans.  I  don't  know,  sir. 

Quest.  Who  was  the  man  that  Israel  Clarke  took  off  from  you  that  day? — Ans. 
Richard  Nathan. 

Quest.  How  many  tickets  do  you  say  were  distributed  that  day  ? — Ans.  I  don't 
know. 

Rebutting  questions : 

Quest.  Please  state  why  you  did  not  give  the  names  of  all  the  persons  who  dis- 
tributed tickets  when  asked  on  your  direct  examination  ? — Ans.  I  intended  to  do  so, 
but  was  interrupted  by  having  another  question  asked  me  before  I  got  through  naming 
them  all. 

Quest.  Did  you  say  that  Israel  Clarke  is  Democratic  in  politics  ? — Ans.  Yes,  sir. 

Quest.  How  many  colored  Democrats  was  there  in  Dayton  beat  ? — Ans.  I  don't 
know,  sir. 

Quest.  Do  you  know  any  other  colored  Democrat  except  Israel  Clarke? — Ans.  Yes, 
sir;  Dick  Browning. 

Quest.  Do  you  know  any  others  besides  Israel  Clarke  and  Dick  Browning? 

I  do  not. 

The  testimony  of  this  witness  has  been  quoted  at  length  for  thereasou 
that  it  does  not  vary  materially  from  that  offered  as  to  other  precincts 
in  Marengo  County,  and  discloses  the  general  theory  of  contestant's 
case.  Charles  Perkins  and  William  Mathews  are  offered  in  support  of 
the  testimony  of  Doc.  Daniels.  The  former  swears  that  he  was  present 
at  the  election;  that  about  480  votes  were  polled;  that  he  does  not 
know  how  matiy  wore  cast  for  the  contestant  and  how  many  for  con- 
testee;  that  he  was  issuing  Republican  tickets  to  Republican  voters, 
and  "  issued  "  75 ;  "  the  voters  put  them  in  the  window  ";  says  about 
80  Democrats  and  about  400  Republicans  lived  in  the  precinct;  that 
the  contestant  was  popular  with  the  colored  voters. 

Witness  saw  nothing  unfair  about  the  counting.  Cross-examined  he 
testifies  to  the  general  good  character  of  the  officers  conducting  the 
election,  except  as  to  one  of  them,  a  colored  Democrat,  Israel  Clarke ; 
but  on  that  point  he  contradicts  the  testimony  of  Doc.  Daniels,  given 
above. 

William  Mathews,  the  third  witness,  was  chairman  of  the  Repub- 
lican executive  committee  for  Dayton  beat  and  distributed  tickets  at 
this  election  j  distributed  150  tickets,  and  says,  "  They  were  put  in  the 


180  THREET  VS.   CLARKE. 

window — voted. "  "  About  385  Eepublican  votes  were  polled  there  that 
day,  and  probably  80  some  odd  Democratic. "  The  colored  people  gen- 
erally voted  the  Kepublican  ticket.  Like  the  other  witnesses,  he  says 
the  contestant  was  a  popular  candidate,  and  was  warmly  supported, 
and  corroborates  them  as  to  the  good  character  of  the  officers  conduct- 
ing the  election.  On  this  evidence  the  contestant  asks  that  the  returns 
from  this  precinct  be  subverted;  that  402  votes  be  gireu  to  him  and 
none  to  his  opponent. 

This  evidence,  standing  alone  and  uncontradicted,  would,  in  the  opin- 
ion of  the  committee,  overcome  the  prima  facie  character  of  the  returns 
and  is  competent  evidence  of  the  charge  of  conspiracy  and  fraud  on  the 
part  of  the  officers  of  the  election. 

But  the  case  does  not  rest  here. 

The  contestee  calls  as  a  witness  J.  Crawford,  the  United  States  su- 
pervisor, a  Republican,  appointed  on  the  recommendation  and  at  the 
request  of  contestant,  who  testifies  to  his  constant  presence  at  the 
polls  during  the  voting  and  the  count,  and  who  swears  unqualifiedly 
that  the  election  was  fairly  conducted  and  the  returns  honestly  made. 
He  is  corroborated  bv  H.  W.  Price,  the  Democratic  United  States  su- 
pervisor, as  to  the  fairness  and  honesty  of  the  election. 

Israel  O.  Olark,  Richard  Browning,  and  John  H.  Webb,  colored  men 
(two  swearing  they  are  Republicans),  testify  that  they  supported  the 
contestee,  and  that  contestant  did  not  enjoy  the  full  confidence  of  his 
colored  Republican  brethren. 

Frauds  at  prior  elections  and  the  obstruction  to  the  taking  of  testi- 
mony in  prior  election  contests  may,  and  often  do,  throw  light  upon  the 
political  situation  in  a  community,  but  cannot  be  taken  as  an  excuse 
for  not  attempting  earnestly  in  subsequent  contests  to  comply  with  the 
rules  of  evidence.  Every  election  must  rest  upon  its  own  merits.  The 
honesty  of  the  election  officers  testified  to  by  contestant's  witnesses  is 
wholly  inconsistent  with  his  theory  of  a  conspiracy  carried  out  by  those 
very  officers  to  defraud  him. 

FaunsdaJe  beat. — Two  witnesses  were  called  for  contestant.  Their 
testimony  tends  to  show  that  they  distributed  the  Republican  tickets  at 
the  polls ;  that  five  of  the  officers  of  election  were  Democrats  and  two 
Republicans;  that  the  witnesses  were  distributing  tickets  at  the  front 
end  of  the  building,  at  the  rear  end  of  which  the  voters  handed  in  their 
ballots  through  a  window,  and  that  from  the  position  of  the  witnesses 
the  window  could  not  be  seen ;  that  no  one  was  permitted  to  remain  at 
the  back  of  the  house  except,  the  voters  and  the  police.  This  is  cer- 
tainly very  slight  evidence  upon  which  to  rest  the  charge  of  conspiracy 
and  fraud.  The  contestee  called  as  witnesses  the  Republican  United 
States  supervisor,  appointed  at  the  instance  of  contestant,  and  the  Ke- 
publican chairman  of  the  executive  committee  of  the  precinct,  who  both 
testify  to  the  regularity  and  fairness  of  the  election.  They  are  sup- 
ported by  the  evidence  of  seventeen  other  witnesses  called  by  contes- 
tee. These  witnesses  stand  unimpeached.  The  individual  voters  were 
not  called,  and  the  returns  must  stand  as  made. 

It  should  be  stated  that  rnider  the  law  of  Alabama  each  political 
party  is  entitled  to  challengers  at  or  near  the  polls,  but  no  other  person 
is  permitted  within  30  feet  of  the  polls. 

Magnolia  or  Haniden  beat. — Ben  Craig  swears  that  Jack  Northrup 
distributed  the  Republican  tickets ;  that  witness  kept  a  list  of  them, 
and  gives  the  names  of  85  voters  to  whom  Republican  tickets  were  de- 
livered; that  he  saw  these  voters  go  to  the  polls  with  these  tickets; 


THREET   VS.   CLARKE.  181 

that  his  view  of  the  polls  was  unobstructed ;  that  he  and  Northrup  were 
"  not  over  20  yards  "  from  the  polls ;  that  the  votes  were  not  fairly 
counted,  "  because  they  (the  inspectors)  reported  30  and  I  reported  85 
Kepublican  votes." 

He  is  corroborated  by  Albert  Hays,  who  testifies  that  each  voter  as 
he  proceeded  to  the  polls  carried  his  ticket  in  his  hand  where  witness 
could  see  it. 

This  under  the  rule  laid  down  is  competent  evidence  as  to  the  num- 
ber of  Republican  votes  cast  at  this  precioct,  and  throws  upon  contestee 
the  burden  of  showing  the  fairness  and  legality  of  the  proceedings. 
The  Republican  United  States  supervisor  within  the  poll  either  failed 
to  do  his  duty,  or  his  silence  mast  be  taken  as  evidence  of  the  absence 
of  fraud.  Seven  witnesses  for  contestee,  including  several  of  the  elec- 
tion officers,  testify  to  the  fairness  of  the  election.  Individual  voters 
were  not  examined. 

The  evidence  before  the  committee  relative  to  the  precincts  of  Jeffer- 
son, Linden,  Macon,  McKinley,  Nixon's  Store,  Spring  Hill,  and  Shiloh 
is  substantially  of  the  same  character  as  that  of  the  last  three  precincts. 

If  the  results  at  all  these  polls  were,as  alleged  by  contestant,taintedby 
fraud  andcorruption  to  such  an  extent  that  the  polls  should  be  excluded, 
he  has  failed,  in  the  opinion  of  your  committee,  to  exercise  that  diligence 
which  the  law  asks  of  every  suitor  before  granting  him  the  relief  prayed 
for.  Bearing  in  mind  that  the  character  and  tendency  of  the  proof  is 
very  similar  in  all  these  precincts,  the  contestant  might  reasonably  have 
been  expected  to  have,  at  least,  in  one  or  a  few  of  them,  called  in  the 
body  of  the  voters  of  the  precinct  and  established  his  claim  of  fraud,  if 
fraud  existed,  beyond  question.  He  does  not  even  pretend  to  have  made 
an  effort  to  do  so  in  this  contest,  but  tries  to  excuse  his  want  of  effort  in 
this  respect  because,  as  he  alleges,  in  some  previous  contest  that  course 
had  failed. 

To  quote  from  his  brief: 

To  call  the  voters  themselves  was  the  best  and  surest  means  of  successfully  proviag 
that  the  count  was  fraudulent.  When  this  was  attempted  by  the  contestant  the  con- 
testee would  cross-examine  each  witness  for  throe  days,  and  in  some  instances  a  whole 
week,  asking  the  witness  all  about  the  Bible  and  the  history  of  the  world  from  Adam 
down.  (See  testimony  in  the  contest  of  McDufBe  vs.  Davidson,  50th  Cong.)  The 
object  of  this  proceeding  was  to  consume  time,  and  as  the  contestant  only  had  forty 
days  allowed  by  law  in  which  to  take  tostimony-in-chief,  it  can  be  readily  seen  how 
difficult,  if  not  impossible,  it  was  to  secure  sufficient  proof  from  the  voters  to  establish 
the  fraud,  as  only  a  few  could  be  examined  by  reason  of  the  obstructive  tactics  of  the 
contestee. 

It  is  only  fair  to  the  contestee  to  say  that  the  evidence  fails  to  dis- 
close that  any  of  the  obstructive  methods  mentioned  in  contestant's 
brief  were  resorted  to  by  him,  and  he  cannot  be  held  responsible  for 
the  sins  of  his  predecessors.  A  close  examination  of  the  record  bears 
evidence  that  the  taking  of  testimony  was  conducted  in  a  very  leisurely 
manner  on  the  part  of  contestant,  and  that,  although  the  number  of  his 
witnesses  is  relatively  small,  his  side  of  the  case  was  not  closed  until 
the  middle  of  March. 

In  Jefferson  beat  he  calls  three  witnesses  to  prove  the  alleged  frauds ; 
contestee  calls  thirteen  to  prove  the  honesty  and  fairness  of  the  election. 

So  in  Linden,  contestant  calls  two  witnesses,  contestee  twelve;  in 
Macon,  contestant  two,  contestee  five;  McKinley,  contestant  four,  con- 
testee three ;  Nixon's  Store,  contestant  two,  contestee  three ;  Spring 
Hill,  contestant  two,  contestee  eight;  Shiloh,  contestant  three,  contes- 
tee eleven. 


182  THREET  VS.  CLARKE. 

MONROE  COUNTY^ 

Section  259,  Code  of  Alabama,  provides : 

Sec.  259.  Inspectors  and  precinct  retu7-ning  officers,  hmc  appointed. — The  judge  of  pro- 
bate, slierifF,  clerk  of  the  circuit  court,  or  any  two  of  theui,  must,  at  least  thirty  days 
before  the  holding  of  auj'  election  in  their  county,  appoint  three  inspectors  for  each 
]i1ace  of  voting,  two  of  which  sliall  be  members  c/  opposing  political  parties,  if  practicable, 
and  one  returning  officer  for  each  precinct  to  act  at  the  place  of  holding  elections  in 
each  precinct;  and  it  shall  be  the  dnty  of  the  sheriff  to  notify  such  inspectors  and 
returning  officers  of  their  appointment  within  ten  days  after  such  appointment. 

The  testimony  of  Authoiiy  R.  Davison,  chairman  of  the  Republican 
executive  committee  of  Monroe  County,  is  to  the  effect  that  he  i)repared 
lists  of  inspectors  in  the  various  precincts,  one  for  each  precinct  who 
could  read  and  write,  and  who  were  reputed  to  be  good  Republicans, 
and  gave  the  list  to  the  sheriff,  and  requested  the  board  to  appoint 
them.  They  were  not  appointed,  but  men  were  appointed  in  lieu  of 
them  who  could  not  read  and  write,  or  were  not  Republicans,  but  they 
were  all  colored  men,  and  some  of  them  had  been  recognized  by  Re- 
publicans as  being  colored  Democrats  for  years.     He  says: 

All  the  clerks  and  inspectors  so  far  as  I  know  were  Democrats.  There  were  some 
that  were  good  appointments,  but  taking  them  on  a  whole,  they  were  not  good  ap- 
pointments. 

This  evidence  is  undisputed. 

The  committee  is  of  the  opinion  that  where  the  course  is  systemat- 
ically pursued,  of  appointing  on  the  election  boards  to  represent  the 
minority  or  opposition  party,  persons  not  indorsed  by  that  party,  and 
as  to  whose  loyalty  to  the  party  whose  interests  they  are  expected  to 
guard  there  is  a  question,  or  of  appointing  persons  who  are  unable  to 
read  and  write,  when  there  would  be  no  difficulty  in  finding  men  well 
qualified  in  those  respects,  this  ought  of  itself  to  be  considered  evidence 
of  conspiracy  to  defraud  on  the  part  of  the  election  officers.  This  was 
clearly  a  violation  of  the  law  on  the  part  of  the  board. 

The  contestant,  however,  has  confined  his  proof  to  only  two  pre- 
cincts in  this  county,  viz,  Monroeville  and  Buena  Vista. 

Monroeville  precinct. — At  this  precinct  the  duly  appointed  inspectors 
did  not  qualify  or  serve  at  the  election.  It  does  not  appear  from  the 
record  that  the  three  persons  appointed  and  who  did  serve  as  inspectors, 
were  not  qualified  electors  of  the  precinct,  nor  that  the  election  was 
not  fairly  and  honestly  conducted. 

Buena  Vista  precinct. — IS^elson  Burgess  testifies  that,  during  the  count- 
ing of  the  ballots,  he  was  watching  the  proceeiiiugs  with  others,  through 
the  window;  that  one  of  the  supervisors,  George  Lyons,  was  seen 
to  crumple  up  several  tickets — as  high  as  sixty — and  throw  them  on  the 
floor;  that  there  were  two  Republican  officials  in  the  room,  one  a  United 
States  supervisor  and  supporter  of  contestant,  but  they  were  crowded 
away  from  the  table'where  the  count  was  conducted  and  unable  to  see 
what  was  being  done ;  that  several  other  parties  witnessed  the  miscon- 
duct of  the  inspector  and  commented  upon  it  at  the  time.  There  is  no 
evidence  as  to  the  actual  number  of  votes  cast  for  contestant  and  con- 
testee  respectively  at  this  precinct.  One  hundred  and  thirty-five  were 
returned  for  contestee  and  38  for  contestant. 

The  facts  testified  to  by  I^elson  Burgess  stand  uncontradicted,  and 
this  poll  should  be  excluded  from  the  count. 

Disregard  and  violation  of  the  election  laws  appear  to  have  taken 
place  in  various  precincts  in  this  district,  but  the  record  fails,  in  the 
opinion  of  the  committee,  to  disclose  that  the  number  of  votes  counted 


TIIREET    VS.    CLARKE.  .     183 

for  contestee  illegally,  or  as  the  result  of  such  frauds,  clianged  the  re- 
sult of  the  election.  The  committee  has  not,  therefore,  in  this  report 
entered  into  a  minute  discussion  of  all  the  precincts  called  in  question 
by  contestant  in  his  brief  and  in  the  argument  of  his  counsel. 

The  committee  is  anxious  to  do  justice  to  the  parties  coming  before 
it,  appreciating  the  importance  of  a  correct  decision  on  its  part,  not 
only  to  the  contesting  parties,  but  to  the  district  where  the  contest 
arose,  the  people  of  which  are  entitled  to  iiave  the  case  decided  upon 
its  merits,  and  not  upon  a  too  technical  construction  of  the  law. 

After  a  fair  and  liberal  consideration  of  this  case,  the  committee  is  of 
the  opinion  that  the  contestant  has  failed  to  prove  the  charges  contained 
in  his  notice  and  his  right  to  the  seat  now  occupied  by  his  adversary. 

The  committee  recommends  the  adoption  of  the  following  resolution  : 

Resolved,  that  Richard  H.  Clarke  was  duly  elected  a  Representative 
to  the  Fifty-first  Congress  of  the  United  States  from  the  First  Congres- 
sional district  of  Alabama  at  an  election  held  November  (5,  1888,  and 
is  entitled  to  a  seat  therein,  and  that  Frank  H.  Threat  was  not  elected 
a  Representative  at  said  election. 


VIEWS  OF  THE  MINORITY. 


March  7, 1890. — Mr.  Crisp,  from  the  Committee  on  Elections,  submit- 
ted the  following  as  the  views  of  the  minority : 

The  undersigned,  members  of  the  Committee  on  Elections,  never  hav- 
ing seen,  or  had  an  opportunity  of  seeing,  the  report  filed  in  the  above- 
stated  case  until  after  the  same  was  reported  to  the  House  and  printed, 
were  unable  to  ascertain  upon  what  grounds  the  committee  would  in 
such  report  base  its  judgment. 

Having  examined  such  report,  we  find  ourselves  unable  to  agree  to 
the  reasoning  therein,  and  this  is  intended  to  express  such  disagree- 
ment. 

We  concur  in  said  report  only  so  far  as  the  same  recommends  the 
adoption  of  a  resolution  declaring  that  Threet  was  not  elected  and  that 
Clarke  was. 

Charles  F.  Crisp. 

Jos.  H.    OUTHWAITE. 

E.  P.  C.  Wilson. 
Chas.  T.  O'Ferrall. 
Levi  Maish. 
L.  W.  Moore. 

185 


•FRANCIS  B.  POSEY  vs.  WM.  F.  PARRETT. 

FIRST  INDIANA. 


Illegal  voting  was  alleged  by  both  sides.  Charges  of  bribery  were 
also  made  in  the  pleadings,  but  no  evidence  presented  to  sustain  them. 
The  committee  find  some  illegal  votes,  but  not  sufficient  to  change  the 
plurality  returned  for  contestee. 

The  resolutions  presented  were  adopted  April  16,  1890,  by  a  vote  of 
125  to  4  (on  division).  The  debate  will  be  found  on  pages  3444  to 
3451. 

(1)  Evidence.    In  chief  taken  in  time  for  rebuttal. 

The  rights  of  the  House  under  the  Constitution  are  not  abridged  by 
the  act  regulating  the  manner  of  taking  testimony  in  contested-election 
cases,  but  each  Congress  in  enforcing  those  rights  will  not  depart  from 
the  terms  of  the  act  except  for  cause.  Where  no  reasons  are  presented 
for  taking  testimony  in  chief  during  the  time  for  rebuttal,  the  committee 
will  not  consider  such  testimony. 

(2)  Residence.     Of  students  in  college. 

Eesidence  is  a  mixed  question  of  fact  and  intention ;  the  fact  with- 
out also  the  intention  is  not  sufficient  of  itself  to  establish  a  legal  resi- 
dence. And  it  is  a  well  settled  principle  of  the  cases  that  one  who 
leaves  his  home  to  go  to  college  for  the  purpose  of  an  education  does 
not  from  continuance  there  the  required  time  gain  a  residence.  On  the 
contrary,  the  very  object  of  his  stay  raises  a  presumption  against  such 
result.  The  question  in  regard  to  students  is  "  whether  they  have 
ever  given  up  their  last  residence  and  undertaken  to  acquire  another 
at  the  college.  To  do  so  they  must  either  directly  have  renounced  their 
former  home  and  assumed  the  obligations  of  citizens  in  their  place  of 
adoption,  or  done  acts,  open  and  acknowledged,  inconsistent  with  the 
one  and  assertive  of  the  other."  The  students  having  testified  that 
they  had  made  the  college  town  their  residence,  and  their  being  no 
evidence  that  this  intention  was  not  formed  and  acted  on  in  good  faith, 
the  committee  would  not  be  justified,  under  the  state  of  the  evidence 
in  this  case,  in  rejectirig  their  votes. 

187 


HEPORT. 


April  3, 1890. — Mr.  Bergen,  from  the  Committee  on  Elections,  sub- 
mitted the  following  report: 

The  Committee  on  Elections,  having  had  under  consideration  the  case 
of  Francis  B.  Posey,  contestant,  against  William  F.  Parrett,  contestee, 
from  the  First  Congressional  district  of  Indiana,  submits  the  following 
report : 

At  an  election  held  on  the  6th  of  November,  1888,  the  contestant  was 
the  Kepublican  candidate  and  the  contestee  was  the  Democratic  candi- 
date for  Eepresentative  from  the  district  to  this  Congress.  The  con- 
testee, on  the  face  of  the  oflBcial  returns,  had  a  plurality  of  20  votes 
over  the  contestant  and  is  in  possession  of  the  seat.  His  right  to  the 
seat,  notwithstanding  the  notice  and  answer,  is  contested  solely  on  the 
ground  of  illegal  votes— that  certain  votes  cast  for  him  should  be  de- 
ducted from  the  number  reported  in  his  favor.  This  is  resisted  on  his 
part,  and  to  the  claim  he  makes  a  counter-claim  that  certain  other  votes 
cast  for  contestant  should  be  deducted  from  the  number  contestant 
claims  to  have  received.  There  are  thus  105  votes  brought  in  question 
by  the  contestant  and  75  by  the  contestee.  The  grounds  relied  upon 
by  the  parties  in  their  objections  to  these  votes  are  either  non-residence, 
minority,  insanity,  drunkenness,  marked  tickets,  or  bribery. 

The  only  evidence  of  bribery  in  the  case  is  produced  on  the  part  of 
the  contestant  to  prove  that  three  Republican  voters  were  approached 
by  Democrats  and  their  votes  bought.  The  effort  is  unsuccessful  and 
the  charges  are  not  sustained.  It  is  matter  of  congratulation  for  the 
country,  that  in  the  First  district,  against  which,  with  the  whole  State  of 
Indiana,  much  has  been  said  in  the  press,  notwithstanding  numerous 
charges  of  bribery  in  contestant's  notice  and  counter-charges  in  con- 
testee's  answer  and  every  position  has  been  pressed  acrimoniously, 
neither  party  has  been  able  to  support  the  charge.  The  only  proper  in- 
ference is  that  no  such  evidence  was  available  and  the  charges  were  un- 
founded. 

It  is  proper  to  observe  here  that  much  of  the  testimony  in  the  case 
has  been  taken  out  of  time,  or  to  speak  more  accurately,  in  rebuttal, 
when  by  its  substance  it  is  evidence  in  chief.  This  is  in  violation  of  the 
act  of  Congress,  and  was  at  the  time  objected  to  on  the  part  of  the  con- 
testee, who  though  present  also  refused  to  cross-examine  on  that  ground. 
No  reasons  for  this  course  on  the  part  of  the  contestant  have  been  pre- 
sented to  the  committee,  and  the  committee  has  felt  itself  bound  to  ex- 
clude such  evidence  from  its  consideration  of  the  case.  It  believes  that 
the  rights  of  the  House  under  the  Constitution  are  not  abridged  by  the 
act  referred  to,  but  that  each  Congress  in  enforcing  those  rights  will  not 
depart  from  the  terms  of  the  act  except  for  cause.    This  disposes  of  all 

189 


190  POSEY   vs.   PAREETT. 

questions  in  the  case  except  that  of  non- residence,  for  all  others  are  sup- 
ported only  by  such  evidence. 

There  are  two  classes  of  voters  brought  in  question  in  this  case  un- 
der the  head  of  non-residents :  those  known  as  the  St.  Meinrad  voters 
and  the  Kentucky  voters,  though  the  last  description  is  not  accurate 
for  not  all  included  under  it  are  spoken  of  as  from  Kentucky. 

The  St.  Meinrad  votes  were  thirty  in  number  and  were  cast  for  thecon- 
testee  by  students  of  the  college  or  seminary  at  St.  Meinrad.  These 
students  were  young  men  there  solely  for  the  purpose  of  an  education 
in  preparation  for  the  priesthood.  They  had  come  mostlj"  from  Indiana, 
but  many  of  them  from  other  States  and  some  of  them  from  foreign 
countries.  Their  tuition  and  support  were  furnished  to  them  by  their 
respective  bishops.  They  all  testified  that  their  residence  was  at  St. 
Meinrad.  It  might  well  be  doubted  if  they  meant  more  by  this  than 
that  they  had  been  at  that  place  the  time  necessary  to  make  it  their 
home.  A  proper  cross-examination  would  probably  have  disclosed  the 
misunderstanding  of  the  witnesses.  But  we  must  consider  the  case  as 
it  is  presented.  No  one  doubts  the  evidence  of  these  very  respectable 
gentlemen  that  they  had  been  at  the  institution  most  of  the  time  for  a 
number  of  years  and  sufBciently  long  to  have  gained  a  residence  if  that 
were  the  only  requisite.  But  residence  is  a  mixed  question  of  fact  and 
intention;  the  fact  without  also  the  intention  is  not  sufficient  of  itself 
to  establish  a  legal  residence.  And  it  is  a  well-settled  principle  of  the 
cases  that  one  who  leaves  his  home  to  go  to  college  for  the  purpose  of 
an  education  does  not  from  continuance  there  the  required  time  gain  a 
residence.  On  the  contrary,  the  very  object  of  his  stay  raises  a  pre- 
sumption against  such  result.  This  is  not  because  the  law  adopts  a 
rule  in  the  case  of  students  different  from  that  in  other  cases,  but  because 
it  also  reasons  from  analogy  and  must  in  all  cases  be  consistent. 

The  votes  of  those  who  in  this  case  have  been  described  as  "  Kentucky 
voters"  depend  upon  the  same  principles  of  law  as  those  of  the  St. 
Meinrad  students,  and  both  depend  upon  solving  the  problem  whether 
the  individual  voter  ever  in  contemplation  of  law  changed  his  place  of 
residence  from  that  last  had  to  that  now  insisted  upon  or  opposed. 

The  law  places  a  child's  residence  with  his  parents,  not  because  they 
are  his  parents  but  because  theirs  is  the  home  into  which  he  is  born ;  so 
also  with  his  guardian  if  his  is  his  actual  home.  There  he  has  the  right 
to  vote  the  day  he  becomes  of  age  and  there  he  has  the  protection  of 
law,  the  right  of  support  if  ill-health,  misfortune,  or  poverty  over- 
takes him  whether  in  infancy  or  mature  years ;  there  a  citizenship, 
which  he  has  the  right  to  prove  and  the  tlag  to  defend  and  against  which 
simple  actual  absence,  no  matter  how  long,  will  be  no  defense.  Nor 
does  such  residence  depend  upon  the  maintenance  of  the  parental  roof. 
(Fry's  Elec.  Cases,  71  Penn.  St.,  302.)  It  moves  with  it  only  when  the 
law  from  other  circumstances  concludes  the  child  is  still  a  component 
part.  The  homestead  may  have  disappeared  and  yet  the  legal  right  of 
the  child  or  man  be  unaffected.  The  State  will  not  disown  its  son,  and 
it  recognizes  the  family  when  a  component  part  but  not  its  sole  depend- 
ence. 

The  intention  of  the  voter  is  an  important  factor  in  determining  the 
place  of  residence,  and  the  proper  way  is  to  examine  the  surrounding 
circumstances  to  discover  that  intention.  Plainly'  one  who  is  a  student 
at  a  college  or  toiler  in  Kentucky  may  be  a  voter,  but  he  may  not  more 
than  any  other  citizen  have  two  places  at  either  of  which  according  to 
whim  or  convenience  he  may  on  election  morning  determine  to  vote.  The 
law  does  not  mean  that  a  matter  so  vital  to  the  rights  of  others  shall 


POSEY    VS.    PARRETT.  191 

be  concealed  and  hidden  within  the  single  breast  of  one  of  the  parties. 
Residence  at  the  college,  or  in  Kentucky,  like  residence  at  any  other 
place  gives  and  takes  away  the  right  to  vote,  but  when  of  a  person  simply 
for  the  purpose  of  an  education  as  in  the  case  of  the  St.  Meinrad  stu- 
dents or  of  labor  as  with  many  of  the  "Kentucky  voters,"  it  raises  a 
presumption  of  want  of  bona  fides  and  necessity  for  other  proof  to  show 
that  it  was  the  intention  of  the  voter  it  should  have  such  effect. 

The  student  voters  were  Catholics,  and  the  form  benefactions  took 
with  them  was  from  the  bishop,  and  from  this  it  was  argued  that  the 
bishop  stood  m  loco  parentis.  Even  if  granted,  it  would  not  affect  the 
question  involved,  nor  have  more  to  do  with  it  than  if  the  students  had 
been  in  a  Protestant  college,  there  supported,  as  is  commonly  the  case, 
by  their  churches  for  the  Protestant  ministry.  The  question  would 
still  be,  not  whether  their  residence  was  that  of  the  church  by  which 
they  were  supported,  but  whether  they  had  ever  given  up  their  last 
residence  and  undertaken  to  acquire  another  at  the  college.  To  do  so 
they  must  either  directly  have  renounced  their  former  home  and  assumed 
the  obligations  of  citizens  in  their  place  of  adoption,  or  done  acts,  open 
and  acknowledged,  inconsistent  with  the  one  and  assertive  of  the  other. 
Every  one  has  a  well  recognized  right  to  change  his  place  of  residence, 
and  may  do  so  if  he  proceed  in  consonance  with  known  principles. 

Contestant's  case  must  fail  in  regard  to  the  students,  not  so  much  be- 
cause in  fact  they  were  entitled  to  vote,  as  to  use  the  language  of  the 
supreme  court  of  Indiana,  in  Pedigo  v.  Grimes  (112  Ind.,  148),  "  be- 
cause there  is  no  evidence  that  this  (their  intention  of  making  that  place 
their  residence)  was  not  their  intention  formed  and  acted  upon  in  good 
faith.'-  Each  party  at  the  hearing  relied  upon  this  case  to  support  his 
position.  It  is  sufficient  to  say,  while  thus  citing  from  it,  that  it  will 
not  bear  the  extreme  construction  put  upon  it  by  contestee.  That 
would  not  only  do  violence  to  its  language  but  place  it  in  opposition  to 
the  trend  of  decisions  elsewhere  upon  which  it  claims  to  rest. 

An  application  of  these  principles  to  the  other  votes  brought  in  ques- 
tion shows  that  the  following  were  improperly  cast  and  counted  for  the 
contestee  and  should  be  deducted  from  his  number,  to  wit:  Solon  Hedges, 
Neeley  Borden,  Samuel  Bogan,  J.  Nickens,  A.  Nickens,  Thomas  Hamp- 
ton, Harry  Hampton,  Dink  Miller,  Frank  Wiseman,  Homer  Campbell, 
E.  T.  Conway,  John  Oaks,  Thomas  Crosnow,  and  Stephen  Winters — 
total,  14;  and  that  the  following  were  improperly  cast  and  counted  for 
the  contestant  and  should  be  deducted  from  his  number,  to  wit :  James 
Smith,  James  Eskridge,  Alex.  Boyd,  Philip  Dailey — total,  4. 

This  still  leaves  the  contestee  with  a  plurality  of  ten  (20— 14-f  4=10). 

The  committee  is  of  the  opinion  that  the  certificate  of  election  was 
rightfully  issued  to  William  F.  Parrett,  and  that  he  is  entitled  to  the 
seat.  It  therefore  submits  the  following  resolutions,  and  recommends 
their  adoption : 

Resolved.,  That  Francis  B.  Posey  is  not  entitled  to  a  seat  in  the  Fifty- 
first  Congress  as  Eepresentative  from  the  First  Congressional  district 
of  Indiana. 

Resolved.,  That  William  F.  Parrett  is  entitled  to  a  seat  in  the  Fifty- 
first  Congress  as  Eepresentative  from  the  First  Congressional  district 
in  Indiana. 


HENET  BOWEN  vs.  JOHN  A.  BUOHANAK 

NINTH  VIRGINIA. 


Contestant  charged  illegal  voting,  bribery,  intimidation,  illegal  action 
of  election  officers,  and  a  general  conspiracy  on  the  part  of  friends  of 
contestee  to  defeat  an  honest  expression  of  the  will  of  the  people. 

The  committee  find  some  illegal  voting,  as  well  as  some  bribery  and 
violence,  but  not  sufficient  to  vitiate  the  election  or  overcome  the  ma- 
jority returned  for  contestee.  The  minority  agree  in  the  conclusion,  and 
also  in  finding  some  bribery  and  violence,  but  protest  that  the  people 
among  whom  these  acts  were  committed  were  not  responsible  for  them 
and  should  not  be  censured. 

The  resolutions  presented  were  adopted  by  the  House  April  16, 1890, 
without  debate  or  division.     (Eecord,  3451.) 

(1)  Returning  board.    Power  to  correct  return. 

Where  a  county  returning  board  in  making  out  their  abstract  acci- 
dentally omitted  one  precinct,  but  before  forwarding  their  returns  dis- 
covered and  corrected  their  mistake,  held  that  this  was  just  what  ought 
to  have  been  done,  and  if  this  precinct  return  had  been  omitted  it 
would  have  been  the  duty  of  the  committee  to  include  it  in  the  total 
vote.  The  vote  of  a  county  can  not  be  thrown  out  for  such  an  infor- 
mality. 

(2)  Population.    Not  to  he  decided  icithout  legal  determination. 

Where  it  was  provided  that  in  all  towns  of  over  2,000  inhabitants  a 
transferred  voter  must  have  his  transfer  recorded  at  least  10  days  prior 
to  the  election,  but  in  all  other  cases  might  vote  without  such  registry, 
held  that  the  election  judges  had  no  right  to  decide  that  a  toWn  was 
within  the  exception  in  the  absence  of  any  legal  determination  of  its 
population. 

(3)  Ballot  box.    Eemoval  of. 

Where  the  poll  was  closed  for  dinner,  and  the  box  removed  from  the 
presence  of  the  United  States  supervisor,  held  that  but  for  the  strong 
affirmative  proof  that  no  wrong  was  intended  or  done  in  this  case  the 
committee  would  unhesitatingly  reject  the  return. 

H.  Mis.  137—13  193 


194  BOWEN  VS.   BUCHANAN. 

(4)  Intimidation.     When  return  to  he  excluded. 

Where  a  small  and  known  number  of  voters  were  intimidated  to  vote 
for  contestee  in  a  precinct  where  in  any  event  he  would  have  had  a 
considerable  majority',  the  return  should  not  be  rejected.  Were  their 
number  uncertain  the  return  would  be  excluded,  and  if  a  sufficient  num- 
ber were  so  intimidated  as  to  overcome  the  majority  of  contestee  he 
■would  not  be  entitled  to  retain  his  seat. 


KEPORT 


APEiii  3,  1890. — Mr.  Eowell,  from  the  Committee  on  Elections,  sub- 
mitted the  following  report: 

The  Committee  on  Elections,  having  had  under  consideration  the  con- 
tested election  case  of  Henry  Bowen  v.  John  A.  Buchanan,  submit  the 
following  report : 

At  the  election  held  in  the  Ninth  Congressional  district  of  Virginia 
on  November  6,  1888,  the  total  vote  returned  for  Congressman  was 
32,562,  of  which  number  John  A.  Buchanan  received  a  majority  of  478 
over  his  Eepublican  opponent,  Henry  Bowen,  contestant. 

The  notice  of  contest  charges,  and  the  answer  denies,  illegal  votiug, 
bribery,  intimidation,  illegal  action  of  election  ofiBcers,  and  a  general 
conspiracy  on  the  part  of  friends  of  contestee  to  defeat  an  honest  ex- 
pression of  the  will  of  the  people. 

The  evidence  taken  in  the  case  affects  the  vote  in  a  majority  of  the 
fourteen  counties  composing  the  district. 

It  is  clearly  shown  that  a  number  of  illegal  votes  were  cast  for  con- 
testee by  non-residents  and  other  unqualified  persons ;  but  the  number 
is  comparatively  small,  and,  in  the  view  of  the  committee,  a  considera- 
tion of  them  in  detail  would  not  change  the  result,  and  for  this  reason 
we  pass  over  this  branch  of  the  case. 

The  record  contains  considerable  evidence  to  prove  the  corrupt  use  of 
money  by  friends  of  contestee. 

In  Russell  County,  the  existence  of  a  corruption  fund  and  a  willing- 
ness to  use  it  are  clearly  established.  Several  votes  were  purchased 
and  attempts  were  made  to  purchase  others. .  Enough  appears  to  arouse 
suspicion  that  more  votes  were  purchased  than  the  evidence  discloses. 
The  committee,  however,  can  only  deal  with  the  facts  established  by  the 
evidence,  however  strongly  they  may  suspect  the  existence  of  more  ex- 
tensive corruption  than  appears. 

Samuel  Sword  was  paid  $6  to  vote  for  contestee.  William  Sword 
was  paid  $5.  The  father  of  these  two  boys  was  offered  money  for  his 
vote,  but  refused  to  sell.  Pat.  Eobinson,  who  handled  the  corruption 
fund  in  the  precinct  where  these  men  voted,  claimed  to  be  acting  under 
the  direction  of  one  Boyd,  one  of  the  judges  of  election. 

At  another  precinct  in  this  county,  George  Herron,  a  colored  man, 
received  a  pair  of  shoes  for  his  vote ;  and  Mark  Price  was  first  threat- 
ened with  prosecution,  and  then  given  $2.50  to  go  home  and  not  vote. 
James  E.  Boardwine  was  paid  $5  to  remain  away  from  the  polls.  He 
would  not  sell  his  vote  for  money,  but  refrained  from  voting.  Cumen- 
ings  Thompson  was  offered  $3  for  his  vote,  but  declined  the  offer.  Frank 
Hess,  James  S.  Hess,  and  Taze  Honiker  voted  for  contestee  in  consider- 
ation of  the  release  of  a  fine  which  bad  been  assessed  against  Frank 
Hess.  195 


196  BO  WEN    yS.    BUCHANAN. 

The  bargain  in  this  case  and  in  some  others  was  ma<le  with  the  sheriff 
and  State's  attorney  of  the  county.  Huston  McNeel  was  induced  to 
vote  the  Democratic  ticket  by  the  release  of  a  $25  flue  standing  against 
him.  William  Dye  and  Lilburn  Dye,  his  son,  were  purchased  by  the 
satisfaction  of  a  $15  fine  standing  against  Lilburn  Dye.  This  pur- 
chase was  made  by  the  sheriff  of  the  county  and  a  satisfaction  entered 
by  him.  These  10  votes  were  directly  purchased,  and  no  attempt  is 
made  to  disprove  the  direct  evidence  establishing  the  fact.  There  is 
considerable  circumstantial  evidence  tending  to  show  that  others  were 
influenced  in  like  manner  in  this  county ;  the  money  was  provided;  the 
will  to  use  it  was  not  wanting,  and,  if  there  were  other  corruptible 
voters  in  the  county  known  to  the  corruptors,  they  were  undoubtedly 
reached  in  the  same  way  and  by  the  same  representatives  of  the  majesty 
of  the  law,  the  sheriff"  and  State's  attorney  of  Russell  County.  We  can 
go  no  further  than  the  evidence  justifies  and  deduct  these  10  votes  from 
contestee's  majority. 

In  Dickinson  and  Wise  Counties  inducements  were  held  out  to  illicit 
distillers  by  United  States  revenue  officers  of  immunity  from  prosecu- 
tion for  violation  of  the  revenue  laws,  in  consideration  of  support  to 
the  Democratic  ticket.  Three  or  four  voters  are  shown  to  have  voted 
for  contestee  on  account  of  this  kind  of  pursuasive  argument.  If  others 
were  so  pursuaded  it  does  not  appear  in  the  evidence.  Altogether 
some  twenty  votes  were  lost  to  contestant  in  the  manner  above  stated. 

It  is  claimed  by  the  contestant  that  several  precincts  in  the  district 
should  be  entirely  rejected,  and  if  his  claim  should  be  allowed  it  would 
be  more  than  sufficient  to  overcome  the  majority  returned  for  contestee. 
In  our  view  of  the  law  and  evidence  none  of  these  claims  can  be 
allowed.     We  refer  to  some  of  them. 

Giles  County. — Here  it  is  claimed  that  the  returns  from  the  county 
should  be  rejected,  because  the  returning  officers  of  the  county  cor- 
rected their  abstract  of  the  i^recinct  returns  after  it  had  been  made  up 
and  the  board  had  adjourned. 

It  seems  that  in  making  up  the  abstract,  by  a  clerical  error,  one  pre- 
cinct had  been  left  out.  Before  the  returns  were  transmitted  to  the 
Secretary  of  the  Commonwealth,  the  mistake  was  discovered  and  cor- 
rected. This  was  just  what  ought  to  have  been  done,  and  if  this  pre- 
cinct return  had  been  omitted,  it  would  have  been  the  duty  of  the 
committee  to  include  it  ih  the  total  vote.  The  objection  is  technical 
and  without  merit. 

It  is  further  insisted  that  the  return  from  Pembroke  district  should 
be  rejected  on  account  of  the  misconduct  of  the  election  judges. 

Sometime  during  the  day  a  fight  took  place  near  the  polling  place, 
and  the  judges  of  election  all  went  out  to  witness  it,  leaving  the  ballot- 
box  in  the  custody  of  the  clerks,  who  were  of  opposite  political  faiths. 
During  this  temporary  absence  the  Democratic  clerk  was  seen  to  push 
a  ticket  into  the  box,  and  it  is  claimed  that  this  circumstance  proves 
that  other  ballots  than  those  of  the  voters  were  deposited  in  the  box. 
The  circumstance  is  explained  in  a  manner  quite  consistent  with  the 
honesty  of  the  clerk.  Just  as  the  fight  commenced,  one  of  the  judges 
had  received  a  ballot  ami  attempted  to  deposit  it  in  the  box,  but  in  his 
hurry  did  not  quite  succeed,  leaving  the  ballot  in  the  opening,  and  the 
clerk  pushed  it  down  with  his  pencil.  Duringtheabsenceof  the  judges 
no  one  interfered  with  the  box,  no  one  was  prevented  from  voting  by  the 
delay,  and  there  is  no  evidence  to  impeach  the  return.  Two  or  three 
illegal  votes  were  cast  at  this  poll,  but  there  is  nothing  to  show  unfair' 
uess  on  the  part  of  the  judges. 


BOWEN   VS.   BTJCHANAN.  197 

Tazewell  County. — At  Pocahontas  precinct,  Tazewell  County,  40  votes 
tendered  for  contestant,  were  in  our  view  illegally  rejected.  By  the 
statutes  of  Virginia  it  is  provided  that  in  all  towns  of  over  2,000  in- 
habitants a  transferred  voter  must  have  his  transfer  recorded  at  least 
ten  days  prior  to  the  election.  At  all  other  precincts, a  transferred 
voter  may  vote  without  such  registry.  It  was  claimed  by  the  election 
officers  that  Pocahontas  was  a  town  of  over  2,000  inhabitants,  and  these 
forty  voters  were  denied  the  right  to  vote  because  they  had  failed  to 
have  their  transfers  registered.  Pocahontas  is  a  new  mining  town; 
no  census,  state  or  national,  has  disclosed  the  number  of  its  inhabitants, 
and  there  is  a  difference  of  opinion  among  the  inhabitants  as  to  the 
number  of  people.  In  the  absence  of  any  legal  determination  of  the 
number,  we  do  not  think  the  election  judges  had  any  right  to  decide 
that  this  town  was  within  the  exception. 

Contestee  lost  4  votes  by  the  same  ruling,  and  there  was  a  net  loss  to 
contestant  of  36  votes. 

Russell  County. — We  are  asked  to  reject  the  returns  from  Honaker 
precinct,  Eussell  County,  on  account  of  alleged  misconduct  of  the  elec- 
tion ofiBcers.  At  this  precinct  the  election  jutlges  adjourned  for  dinner 
and  supper,  and  each  time  two  of  them  took  the  ballot-box  from  the 
polling  place  and  carried  it  to  a  private  house  where  they  went  for  their 
meals.  By  this  conduct  the  box  was  removed  from  the  presence  of  the 
United  States  supervisor,  in  violation  of  the  statute.  The  supervisor 
claims  that  he  protested  against  the  removal,  but  the  preponderance  of 
the  evidence  is  against  his  claim.  The  majority  for  ihe  contestee  at 
this  precinct  was  89,  a  large  increase  over  former  elections.  This 
illegal  act  of  the  judges  gave  opportunity  for  fraud,  such  fraud  as  the 
statute  was  designed  to  prevent.  In  the  examination  of  other  cases  we 
have  found  that  adjournment  and  removal  of  the  ballot-box  from  the 
presence  of  the  supervisor  is  a  common  method  resorted  to  when  it  is 
intended  to  change  the  ballots  or  the  boxes.  But  for  the  strong  affirma- 
tive proof  that  no  wrong  was  intended  or  done  in  this  case,  the  com- 
mittee would  unhesitatingly  reject  the  return. 

The  increase  in  the  Democratic  majority  is  accounted  for,  to  some  ex- 
tent, if  not  fully,  by  the  existence  of  the  corruption  fund  spoken  of  in 
this  report. 

At  Loup  or  Johnson's  Store  precinct  it  is  claimed  that  the  returns 
should  be  rejected  because  of  the  undue  and  improper  influence  of  the 
Stewart  Land  and  Cattle  Company  over  their  emplo;yes,  some  forty  or 
fifty  in  number.  The  proof  tends  to  show  that  at  previous  elections 
these  employes  had  been  given  to  understand  that  they  must  vote  the 
Democratic  ticket  or  lose  their  places.  It  was  generally  understood  in 
the  community  that  one  of  the  conditions  of  employment  by  this  com- 
pany was  that  the  men  should  vote  the  Democratic  ticket.  It  is  un- 
questionably true  that  many  of  the  men  believed  that  to  vote  otherwise 
■would  cost  them  their  places,  and  that  belief  undoubtedly  induced  some 
of  them  to  vote  against  their  convictions.  But  there  is  no  direct  evi- 
dence implicating  any  of  the  members  of  this  company  in  an  attempt 
to  control  their  employes  at  this  election  other  than  the  presence  at  the 
I>olls  of  one  of  their  foremen  distributing  tickets  to  the  men.  How 
many  men  were  influenced  by  the  prevalent  belief  does  not  appear,  and 
this  supposed  influence  is  too  uncertain  and  indefinite  to  justify  the  re- 
jection of  this  poll  or  other  neighboring  polls  where  some  of  the  em- 
ployes voted. 

Buchana/n  Ooimty. — At  Slate  or  Sander's  precinct,  in  Buchanan 
County,  contestee  received  62  votes,  and  contestant  none.    The  evidence 


198  BOWEN 'vs.    BUCHANAN. 

shows  that  there  are  from  ten  to  fifteen  Republicans  in  tlie  precinct; 
that  before  the  election  word  was  circulated  that  no  Kepulilican  would 
be  permitted  to  vote  there;  and  that  six  or  seven  of  tLem  went  to  the 
polls,  and  were  immediately  assaulted  by  a  crowd  of  drunken  roughs. 
The  intervention  of  the  more  peaceably  inclined  saved  them  from  injury. 
Threats  were  freely  made  during  the  day  against  all  who  should  at- 
tempt to  vote  the  Republican  ticket.  Three  of  those  present,  did  how- 
ever, vote  the  Republican  national  ticket,  but  they  voted  for  contestee 
as  a  measure  of  prudence. 

The  majority  of  the  voters  at  this  precinct  were  peaceably  disposed, 
but  a  few  vicious,  drunken  partisans  of  contestee  deprived  contestant 
of  the  Republican  votes  of  the  precinct  Were  their  number  uncertain, 
■we  would  exclude  the  return,  but  as  their  number  is  not  a  matter  of  un- 
certainty, and  as  contestee  would  have  had  a  considerable  majority  in 
this  precinct,  in  any  event,  it  is  not  in  accordance  with  the  precedents 
to  reject  the  return,  if  a  suflBcient  number  were  so  intimidated  as  to 
overcome  the  majority  of  contestee,  the  committee  would  hold  that  he 
had  no  right  to  retain  his  seat. 

Dickinson  County. — Colly  precinct :  At  this  precinct  the  vote  was  92 
for  contestee  and  16  for  contestant.  In  past  years  it  has  been  dangerous 
for  a  Republican  to  attempt  to  vote  in  this  district.  In  18S4  only  eight 
voted,  and  some  of  these  were  badly  whipped  before  they  left  the  polls. 
Previous  to  the  day  of  the  election  in  1»88  a  political  meeting  was  held, 
at  which  a  Democrat  and  a  Republican  spoke,  as  soon  as  the  Republi- 
can commenced  to  speak  the  disorder  commenced,  and  one  or  two  Re- 
publicans were  assaulted.  Order  was  only  secured  by  the  efforts  of 
the  Democratic  speaker.  After  the  meeting  several  Republicans  were 
assaulted.  To  protect  the  voters  a  United  States  supervisor  was  ap- 
pointed at  this  poll,  and  the  feeling  of  security  which  resulted  brought 
the  Republicans  to  the  polls. 

Sixteen  votes  were  cast  for  the  Republican  ticket,  which,  so  far  as 
appears  from  the  evidence,  was  the  full  Republican  strength.  Around 
the  polls  there  was  plenty  of  fighting  and  drinking,  but  no  attempt  to 
keep  any  one  from  voting.  It  is  a  very  hard  neighborhood  ;  illicit  dis- 
tillers abound  j  ignorance  and  vice  prevail  to  an  alarming  extent,  and 
the  prejudice  against  the  Republican  party  is  so  strong  that  it  can  not 
be  said  that  a  free  expression  of  the  popular  will  is  possible.  There  are 
few  Republicans  in  the  neighborhood,  but  those  who  are  there  are  not 
different  in  character  trom  their  Democratic  neighbors,  and  some  of 
them  are  not  averse  to  taking  a  hand  in  the  violent  demonstrations 
■which  seem  to  be  an  accompaniment  of  elections.  It  does  not  appear 
that  either  party  lost  any  votes  because  of  this  violence. 

Wise  County — Pond  precinct.  This  is  another  piecinct  where  it  is 
claimed  the  returns  ought  to  be  rejected  on  account  of  violetice  at  the 
polls.  An  armed  band  of  illicit  distillers  was  at  the  polls  during  the 
afternoon,  drinking,  shooting,  and  threatening;  but  the  Republican 
vote  had  all  been  cast  before  the  violence  commenced,  and  no  one  was 
prevented  from  voting.  For  what  purpose  these  men  came  to  the  polls 
armed  does  not  appear.  They  were  law-breakers,  accustomed  to  look 
for  attempts  to  arrest  them,  and  to  defend  themselves,  and  it  is  prob- 
able that  they  did  not  venture  far  from  home,  even  to  attend  an  elec- 
tion, without  carrying  arms. 

It  seems  from  the  evidence  that  in  this  section  of  Virginia  election  day 
famishes  the  occasion  for  drinking,  fighting,  and  settling  feuds ;  that 
the  peaceably-inclined  understand  the  disposition  of  the  more  vicious, 
and  do  not  fear  personal  injury ;  and  that  the  rougher  characters  of 


BO  WEN   VS.    BUCHANAN.  199 

both  political  parties  are  perfectly  willing  to  take  their  chances  on  elec- 
tion day.  Conduct  which  would  drive  the  mass  of  voters  from  the  polls 
in  other  communities  does  not  seem  seriously  to  aft'ect  the  result  here, 
and  it  is  for  this  reason  that  we  do  not  reject  returns  where  so  much 
violence  prevails. 

Smythe  County. — At  Chatham  Hill,  Smythe  County,  complaint  is  made 
of  Mr.  Baker,  one  of  the  judges,  that  he  manifested  a  disposition  to  ex- 
amine the  tickets  to  see  how  men  vpted.  A  fight  took  place  at  this  poll 
between  whites  and  negroes,  and  there  were  other  irregularities  com- 
mon to  the  section,  but  nothing  to  afiect  the  integrity  of  the  returns. 

Wise  County — Clay  House  precinct.  Here  frauds  upon  the  registration 
are  alleged.  The  registrar  was  away  when  he  ought  to  have  been  at 
his  office,  and  three  or  four  failed  to  register  on  that  account.  He  was 
active  in  getting  Democrats  on  the  register,  and  quite  willing  that  Ee 
publicans  should  fail  to  qualify.  It  does  not  appear  that  any  were 
registered  who  were  not  residents,  and  not  more  than  four  failed  to 
register  on  account  of  the  misconduct  of  the  office. 

It  is  also  claimed  that  between  one  hundred  and  two  hundred  col- 
ored employes  on  the  railroad  were  cheated  out  of  their  votes  by  fail- 
ure to  procure  transfers  from  their  former  homes.  1  here  is  nothing  in 
this  claim.  These  men  trusted  to  others  to  procure  them  transfers,  and 
neglected  to  do  what  was  required  of  them.  Trusting  to  others  was 
their  misfortune,  but  it  does  not  excuse  their  own  neglect.  Besides, 
none  of  them  tendered  their  ballots,  and  there  is  no  sufficient  evidence 
that  they  \^  ere  residents  in  the  precinct. 

In  Halsten,  Washington  County,  several  persons  were  permitted  to 
vote  for  contestee  without  transfers  or  registration.  This  was  true  in 
one  or  two  other  places,  by  which  illegal  voting  contestee's  majority  was 
increased  by  fourteen. 

Other  complaints  were  made,  and  evidence  introduced  to  sustain  them, 
but  we  have  referred  to  the  more  flagrant  charges,  and  do  not  deem  it 
necessary  to  review  the  evidence  further.  Our  conclusion  is,  that  <"he 
majority  of  contestee  is  reduced  to  the  extent  of  some  200  votes  by  the 
various  frauds,  irregularities,  and  illegal  votes  proved  by  the  evidence : 
but  this  leaves  him  a  majority  of  over  200  under  a  liberal  construction 
of  the  law,  and  a  fair  consideration  of  all  the  evidence.  The  committee 
therefore  submit  the  following  resolutions  : 

Resolved,  That  John  A.  Buchanan  was  duly  elected  to  the  Fifty-first 
Congress  trom  the  Ninth  Cougressioual  district  of  Virginia,  and  is 
entitled  to  retain  his  seat. 

Resolved,  That  Henry  Bowen  was  not  elected  a  Representative  to  the 
Fifty-first  Congress  from  the  Ninth  Congressional  district  of  Virginia, 
and  is  not  entitled  to  the  seat. 


VIEWS  OF  THE  MINORITY. 


April  7, 1890. — Mr.  O'Ferrall,  from  the  Committee  on  Elections, 
submitted  the  following  views  of  the  minority : 

We  concur  in  the  foregoing  report  in  so  far  as  it  declares  that  the 
sitting  member  is  entitled  to  retain  his  seat,  but  with  many  of  its 
statements  and  with  much  of  its  reasoning  we  do  not  concur.  We  will, 
however,  only  call  attention  specially  to  two  or  three  points  of  disa- 
greement. 

First.  The  criticism  made  upon  the  people  of  several  counties  of  said 
district,  we  think,  is  unjust  and  uncalled  for.  It  is  true  that  a  few  per- 
sons under  the  influence  of  intoxicating  liquors  attempted  to  interfere 
with,  and  in  a  few  instances  did  interfere  with,  voters  in  the  exercise 
of  their  right  of  suffrage ;  and  it  is  also  true  that  in  a  few  instances 
money  or  other  thing  of  value  was  used  improperly  to  influence  voters 
,iu  casting  their  ballots.  But  whilst  these  things  are  true  and  the  con- 
duct of  the  persons  engaged  in  said  wrongful  acts  should  be  con- 
demned, we  do  not  think  that  the  people  among  whom  these  wrong- 
doers lived  should  be  censured  for  wrongs  they  did  not  commit  and  for 
which  they  were  not  responsible.  Neither  do  we  think  that  one  politi- 
cal party  should  be  criticised  for  the  misconduct  of  men,  some  of  whom 
belonged  to  one  party  and  some  to  the  other,  when  said  misconduct 
was  not  approved  by  either. 

Second.  After  the  committee  had  determined  that  the  sitting  mem- 
ber was  entitled  to  retain  his  seat  upon  the  contestant's  own  showing, 
we  do  not  think  it  was  necessary  to  ascertain  whether  the  sitting  mem- 
ber's majority  was  greater  or  less  than  that  shown  for  him  by  the  re- 
turns, but  if  this  was  to  be  done,  justice,  in  our  opinion,  demands  that 
the  errors  committed  in  the  conduct  of  said  election  to  the  prejudice 
of  the  sitting  member  as  well  as  to  the  prejudice  of  the  contestant 
should  have  been  considered  and  corrected.  This  was  not  done,  yet  it 
is  said  in  the  report  that  the  majority  of  the  sitting  member  was  some 
two  hundred  less  than  that  returned  for  him.  This  statement  is  clearly 
incorrect.  We  are  satisfied  if  all  errors  to  the  prejudice  of  either 
party  was  corrected  that  the  majority  of  the  sitting  member  would  be 
as  much  if  not  more  than  that  returned  for  him. 

Chas.  T.  O'Ferrall. 

Charles  F.  Crisp. 

j.  h.  uuthwaite. 

B.  P.  C.  Wllson. 

L.  W.  Moore. 

Levi  Maish. 

201 


EDMUND  WADDILL,  JR.,  vs.  GEORGE  D.  WISE. 

THIBD  VIRaiNIA. 


The  case  turned  upon  the  disposition  to  be  made  of  the  votes  of  a 
large  number  of  voters  who  attempted  to  vote  for  contestant  in  Jackson 
vard,  Richmond.  These  voters  were  at  the  polling  place,  in  line  and 
ready  to  vote,  on  the  day  of  election,  but  were  still  in  line  when  the 
polls  closed,  having  failed  to  reach  the  window.  It  was  charged  that 
that  their  inability  to  vote  was  due  to  intentionally  dilatory  tactics  re- 
sorted to  by  the  workers  for  contestee,  with  the  aid  and  collusion  of 
the  officers  of  election.  The  committee  find  this  charge  sustained  by 
the  evidence,  and  regarding  the  votes  as  having  been  legally  tendered 
and  unlawfully  rejected,  count  them  as  if  cast.  They  were  all  for  con- 
testant, and  if  counted  would  give  him  a  majority  in  the  district.  The 
minority  find  the  charges  of  collusion  on  the  part  of  the  judges  not 
sustained  by  the  evidence,  and  that  if  there  was  any  needless  delay  it 
was  caused  by  partisans  of  contestant ;  that  the  law  as  found  in  the 
precedents  is  that  in  case  the  loss  of  votes  was  due  to  accident  or  mis- 
fortune, there  is  no  remedy,  and  contestee  should  retain  his  seat ;  in 
case  it  was  due  to  fraud  the  seat  should  be  declared  vacant.  In  this 
case  it  was  not  due  to  fraud,  but  the  minority,  not  being  satisfied  of  the 
justice  of  the  established  rule,  and  being  of  the  opinion  that  the  ends 
of  justice  will  be  subserved  by  unseating  the  contestee  and  ordering  a 
new  election,  recommend  that  the  seat  be  declared  vacant.  (See  mi- 
nority report,  page  227.)  The  resolutions  presented  by  the  committee 
were  adopted  April  12,  1890,  the  first  without  division,  and  the  second 
by  a  vote  of  134  to  120,  and  Mr.  Waddill  was  sworn  in.  The  debate 
will  be  found  on  pages  3294  to  3363. 

(1)  Vote.    Improperly  rejected. 

A  lawful  vote  properly  tendered  and  unlawfully  excluded  may  be 
counted  on  a  contest. 

(2)  Tender.     What  is. 

The  ability  to  reach  the  window  and  actually  tender  the  ticket  to  the 
judges  is  not  essential  in  all  cases  to  constitute  a  good  oifer  to  vote. 
From  the  time  the  voter  reaches  the  polling  place  and  takes  his  position 
in  line  to  secure  his  orderly  turn  in  voting,  he  has  commenced  the  act 
of  voting. 

203 


204  WADDILL,    JR.,    VS.   WISE. 

(3)  Rejection.     Constructive,  hy  undue  delay. 

"  If  by  the  wrongful  act  of  fraudulent  challenges  unduly  prolonged 
by  the  connivance  and  collusion  of  the  judges  of  the  election  the  voter 
is  deprived  of  the  opportunity  to  vote,  the  interest  of  our  form  of  govern- 
ment and  the  purity  of  elections  demand  that  the  vote  should  be  counted. 
If  the  fraudulent  exclusion  of  vot^s  would  if  successful,  secure  to  the 
party  of  the  wrongdoer,  a  temporary  seat  in  Congress,  and  the  only 
penalty  for  detection  in  the  wrong  would  be  merely  a  new  election, 
giving  another  chance  for  the  exercise  of  similar  tactics,  such  practices 
would  be  at  a  great  premium  and  an  election  indefinitely  prevented. 
But  if  where  such  acts  are  done  the  votes  are  counted  upon  clear  proof 
aliunde,  the  wrong  is  at  once  corrected  in  this  House  and  no  encourage- 
ment is  given  to  such  dangerous  and  disgraceful  methods." 


HEPORT. 


Makoh  31,  1890.— Mr.  Lacey,  from  the  Committee  on  Elections,  sub- 
mitted the  following  report: 

The  Committee  on  Elections,  who  have  had  under  consideration  the 
contested  election  case  from  the  third  Congressional  district  of  Virginia, 
submit  the  following  report : 

At  the  general  election  held  on  the  6th  day  of  November,  1888,  in  the 
third  Virginia  district,  Edmund  Waddill  and  George  D.  Wise  were 
voted  for  to  represent  said  district  in  the  Eifty-flrst  Congress. 

The  oflQcial  returns  show  the  following  results : 


"WaddilL 


Kichmond  City  . 

Manchester 

King  William  .. 

Hauover 

New  Kent 

Henrico 

Chesterfield  .... 
Goochland 


Total, 


15, 347 


Wise 15,608 

Waddill 15,347 


Majority  for  George  D.  Wis© 201 

(See  Record,  page  670.) 

A  number  of  votes  are  challenged  in  this  contest,  and  irregularities 
and  fraudulent  acts  complained  of  on  both  sides.  The  pivotal  question 
in  the  case  is  as  to  whether  certain  votes  in  Jackson  ward,  in  the  city 
of  Eichmond,  shall  be  counted.  If  these  votes,  or  such  of  them  as  are 
clearly  shown,  should  be  counted  for  the  contestant  the  contestant  is 
entitled  to  the  seat,  but  if  the  votes  in  question  are  not  counted  the 
contestant  is  not  elected. 

It  is  claimed  by  contestant  that  in  Jackson  ward  722  legal  voters  were 
wrongfully  prevented  from  voting;  that  these  voters  were  lawfully 
registered  and  qualified  electors ;  that  they  presented  themselves  in  line 
on  the  day  of  the  election  prepared  to  take  their  turns  in  voting,  and 
had  in  their  hands,  ready  to  deposit,  ballots  properly  prepared  to  cast 
for  the  contestant  for  member  of  Congress. 

That  the  partisans  and  friends  of  the  contestee  hindered  and  ob- 
structed these  voters  by  making  frivolous  challenges  of  lawful  voters, 
and  that  the  judges  of  the  election  colluded  with  and  aided  the  chal- 
lengers in  delaying  the  casting  of  the  ballots  by  entertaining  such 
challenges,  by.  consuming  unnecessary  time  in  hearing  and  taking 
action  upon  them,  and  by  making  needless  explanations  to  the  voters  as 
to  theeftect  of  certain  constitutional  amendments  which  were  being  voted 

205 


206 


WADDILL    VS.    WISE. 


on  at  the  election  :  that  by  needless  and  fraudulent  delays  in  receiving 
and  depositing  the  ballots,  these  722  voters  were  prevented  from  cast- 
ing their  votes  for  contestant.  Contestant  further  claims  that  557  of 
said  voters  thus  prevented  from  voting  remained  in  line  at  the  time  of 
the  closing  of  the  polls,  and  that  thereupon  United  States  commis- 
sioners prepared  ballot-boxes  and  received  the  ballots  of  such  voters 
and  deposited  the  same  in  the  boxes  and  preserved  the  same,  which 
ballots  were  in  evidence  before  the  committee. 

The  votes  thus  in  controversy  are  confined  to  three  precincts  of  Jack- 
son ward.    Of  these  voters  457  were  examined  as  witnesses. 

In  the  first  precinct  contestant  claimed  that  255  of  such  votes  were 
deposited,  and  examined  199  of  the  alleged  voters.  The  names  and 
pages  of  the  record  upon  which  their  evidence  may  be  found  is  here  set 
out: 


Joshua  Coles,  238  to  240. 
William  Branch,  240  to  241. 
Beverly  Travers,  242  to  243. 
Clarance  Peyton,  243  to  245. 
Beverly  Br  oks,  247  to  248. 
Thomas  Furm,  248  to  250. 
Jerrv  Turner,  250  to  251. 
William  Marshall,  251  to  263. 
Auffustus  Anderson,  253  to  254. 
William  Annstead,  254  to  255. 
Charles  Butler,  255  to  257. 
John  Bolden,  257  to  258. 
Jacob  Biyce,  258  to  259. 
David  Robinson,  259  to  260. 

B.  W.  Rivers,  260  to  261. 
Robert  Bentley,  262  to  263. 
W.  J.  Barcrofr,  263  to  264. 
Abram  Booker,  264  to  266. 
James  Braxton,  266  to  267. 
G.  C.  Booker,  268  to  269. 
Joshua  Bowman,  269  to  271. 
William  BiUups,  271  to  272. 
Isaac  Clark,  273  to  274. 

W.  M.  Clark,  274  to  277. 
Daniel  Clark,  277  to 279. 
Th  .mas  Anderson,  279  to  282. 
D.  Cheatham,  282  to  283. 
Thomas  Chatman,  284  to  285. 
Henrv  Carter,  285  to  287. 
Briscoe  Cherry,  287  to  289. 
Samuel  Claxton,  289  to  292. 
W.  W.  Scott,  292  to  293. 
Henry  Cooper,  294. 
Robert  Harris,  294  to  295. 
Mordecai  Brown,  295  to  298. 
Emanuel  Baker,  298  to  300. 
Joseph  Hennyman,  300  to  302. 
Robt.  B.  Tavior,  302  to  304. 
Madison  Banks,  304  to  306. 
Braxton  Smith,  306  to  308. 
Jesse  Coy,  308  to  310. 
Peter  Henley,  310  to  312. 
Reuben  Jones,  312  to  314. 
Henrv  Hjirris,  314  to  316. 

C.  M."Kemp,  316  to  318. 
Wilson  Thomas,  318  to  320. 
John  Robertson,  320  to  321. 
W.C.Scott  321  to  323. 
William  Lewis,  323  to  325. 
Charles  H.  Muse,  325  to  327. 
Tbos.  D.  Payne,  327  to  330. 
W.  N.  Rivers,  330  to  331. 
Robt.  H.  Taylor,  332  to  334. 
Marcellus  Puryear,  334  to  336. 
Reuben  Lewis,  336  to  338. 
Charles  H.  James,  338  to  339. 
Scott  Jackson,  340  to  341. 
Tha  Ideus  Boiling,  341  to  343. 
Xelson  Ross,  .'?43  to  345. 

Geo.  Hunt,  345  to  346. 
W.S  Banks,  346  to  348. 
Frank  Terrill,  348  to  349. 
Edward  Johnson,  349  to  350. 
Abram  Kinney,  350  to  351. 
Geo.  Taylor,  352  to  353. 
Thomas  Lee,  353  to  354. 


W.  P.  Burrell,  355  to  35a 
Gilliam  Jones,  359  to  360. 
Stonewall  Jackson,  360  to  361. 
Joseph  Brown,  3(il  to  363. 
Cassandrow  Banks,  363  to  364. 
Wm.  Crump,  364  to  366. 
William  Scott,  360  to  368. 
Charles  Scott,  368  to  369. 
W.  T.  Taylor,  369  to  371. 
Ryland  Lewis,  371. 
Lewis  Jackson,  372  to  373. 
Major  Johnson,  373  to  374. 
Ned  Stanton,  374  to  376. 
Albert  Jackson,  376  to  378. 
Jones  Allen,  378  to  379. 
William  Richardson,  379  to  380. 
Abram  Tin  ale  v,  380  to  382. 
Oscar  Tavior,  382  to  383. 
James  E.  Taylor,  383  to  384. 
Geo.  Selden,"384  to  385. 
Geo.  Mimms,  386  to  387. 
E.  C.  Smith,  387  to  388. 
Charles  Rainey,  392  to  393. 
David  Strother,  395. 
Benj.  Thompson,  396  to  397. 
Edward  Jones,  397  to  398. 
James  Johnson,  398  to  400. 
John  Johnson,  400  to  401. 
Daniel  Reynolds,  406  to  407. 
Henry  Vehable,  407  to  409. 
James  Vaughn,  109  to  410. 
Patrick  Jackson,  410  to  411. 
Seymour  Johnson,  412  to  414. 
Roj'al  White,  420  to  421. 
Joseph  Wilkinson,  421  to  422. 
Robt.  Lynch,  422  t  o  423. 
Cornelius  Dabney,  423  to  425. 
Geo.  Dawsou,  425  to  426. 
Anthony  Gray,  426  to  427. 
Thomas  Jefferson,  427  to  428. 
Robt.  Johnson,  429  to  430. 
John  W.  Jackson,  430  to  431. 
Joseph  Harris,  431  to  432. 
A.  D.  Price,  433  to  434. 
John  Martin,  434  to  435. 
Henry  Dedman,  435  to  437. 
Mao  I'ravscr,  437  to  438. 
Jonas  Epps.  438  to  439. 
Peter  Hall,  439  to  440. 
Russell  Foster,  440  to  441. 
Peyton  H.  Green,  442. 
William  Davis,  443  to  444. 
Jack  Hayes,  444  to  445. 
Wilson  Louey,  445  to  448. 
Nelson  Lee,  448  to  449. 
Eugene  Garrison.  449  to  450. 
Isaac  Johnson,  451  to  452. 
M.  C.  Methord,  452  to  454. 
Lewis  Green,  454  to  455. 
Geo.  Mayo,  455  to  456. 
Van  Washington,  4r)6  to  4.57. 
Jas  R.  Gross,  457  to  458. 
Washington  Cootes,  458  to  459. 
Wm.  D.  Poindexter,  460  to  461. 
James  Wren,  461  to  463. 
Richard  Morton,  463  to  464. 
J.  A.  Moss,  464  to  465. 


MadisonPendleton,  465  to  467. 
Sam'l  Wade,  467  to  468. 
Geo.  Wood,  468  to  469. 
Benjamin  Wray,  469  to  471. 
William  H.  Pollard,  471  to  472. 
R.  W.  Edward,  472  to  473. 
W.  H.  Massey,  473  to  476. 
Grautland  Marks,  475  to  476. 
Giles  Willis,  470  to  477. 
Collin  Tales,  478  to  480. 
Archer  Woodson,  480  to  481. 
Geo.  Washingtolj,  481  to  482. 
John  Lewis.  482  to  484. 
Jesse  Williams,  484  to  486. 
James  Mon  is,  48C  to  488. 
Robt.  Maston,  488  to  489. 
Fleming  Glover.  489  to  490. 
Robt.  Yancey,  490  to  492. 
S.  L.  Leftwitch.  492  to  493. 
Emanual  Williams,  493  to  494. 
Joe  Wormlev,  495  to  496. 
Edward  Williams,  496  to  497. 
John  Wallace,  497  to  498. 
Albert  Wrav.  498  to  499. 
Alex.  Gaines,  500  to  501. 
.Toseph  Fortune.  501  to  502. 
Henrv  Willis,  502  to  503. 
J.  H.  D.  Wiugfield,  503  to  505. 
Kobt.  Dickerson,  505  to  506. 
A.  R.  Lucado,  508  to  507. 
Armstead  Miller,  507  to  508.  ' 
John  WTiite,  509  to  i)ll. 
William  H.  Fray.ser,  513  to  51o. 
Jeff  Mitchell,  516  to  .517. 
William  Fox,  520. 
Fielding  Hundley,  521  to  523. 
William  Fauntleray,  523  to  624. 
J.H  Cox,  .030  to  5  tl. 
Joseph  Woodfolk,  531  to  532. 
Peter  (Jhandler,  670  to  672. 
Robt.  H.  Hill,  672. 
Andrew  Jackson,  673. 
JohnBolling,673to674. 
Moses  Peters,  C74  to  675. 
Emanuel  T.  Jenkine,  675. 
Enos  Johnson,  67  to  676. 
Paul  Ballow,  076  to  677. 
Richard  1/.  Harii.'i,  677  to  678. 
Joseph  Boll,  678  to  679. 
Geo.  O  Brown,  679  to  680. 
Joshua  HentUey,  680. 
Archer  Harris,  680  to  681. 
Jas.  H.  Pride,  68;  to  682. 
Anthony  M.  Reed,  682  to  683. 
Geo.  E.  Burke,  683. 
Mark  A.  Ball,  683  to  684., 
Albert  Hooper,  684  to  685. 
Alexander  Holmes,  685  to  686. 
Jas.  E.  Brooks.  687. 
Jas.  Thomas  Carter,  687  to  688. 
Henry    ohnson,  688  to  689. 
Albert  A.  Harris,ifi?9. 
Preston  Hopkins,  690. 
Jacob  Brown,  690  to  691. 
Stirling  Pleasants,  691  to  692. 
Jas.  T.  Brooks,  692  691 


WADDILL    VS.    WISE. 


207 


In  the  third  precinct  contestant  claimed  that  168  ballots  were  de- 
posited there  with  a  United  States  commissioner,  and  of  these  voters 
136  were  examined.  We  give  their  names  and  the  pages  of  the  record 
where  their  evidence  may  be  found  : 


WiUiam  Boiling,  533  to  535. 
PaytOD  Brooks,  535  to  537 
H.  M.  Booth,  537|to  538. 
Cornelius  Palmer,  538  to  540. 
Edward  Black,  540  to  541. 
Renlien  T.  Hill.  .542  to  543. 
Marcus  Bowles,  543  to  544. 
Alexander  Allen,  544  to  545, 
Valvin  T.  Mann,  545  to  546. 
Carter  Marshall,  546  to  547. 
I'rank  E.  Black,  548. 
Jas.  Anderson,  548  to  549. 
James  Bell,  550  to  552.  ' 

Abner  Cocley,  652  to  554. 
Jas.  J.  Foster,  554  to  655. 
Creo.  M.  Booker,  555  to  557. 
Jo.<*eph  Baker,  557  to  558. 
Geo.  Unncan.  558  to  559. 
Albert  Hundlev,  559  to  560. 
Wesley  Harris,"  560  to  562. 
Osborn  Holmes.  562  to  564. 
William  H.  Hall,  5ti4  to  565. 
William  H.  Hope,  565  to  566. 
Henrv  N.  Dyson,  567. 
Robt.' Hawkins,  568  to  569. 
James  Jackson,  509  to  570. 
Geo.  Jackson,  570  to  571. 
Collin  r.  Payne,  571  to  573. 
Geo.  D.  Jimmerson,  573  to  574. 
Robt.  E.  Johnson,  574  to  575. 
Henry  Chiles,  575  to  576. 
Spencer  Johnsoa,  576  to  577. 
Andrew  J,  C^^rr,  577  to  578. 
Joseph  Canthorn,  578  to  579. 
Israel  Meriweather,  579  to  582. 
Geo.  H.  Chiles,  582  to  §84. 
Andrew  Dabnev,  584. 
Scott  Fre-elan4,'585  to  586. 
Tim  Flood.  586  to  587. 
Charles  Fravser,  587  to  589; 
Gilbert  Mufrell,  589  to  591. 
Jas.  H.  Fanntlcroy,  591  to  594. 
Miwes  Page,  594  to  595. 
Thos.  D.  Harris,  596  to  597. 
Jacob  Tavlor,  597  to  598. 
Th'eophilus  Winston,  598  to  599. 


William  M.  Scott,  599  to  601. 
And'w  J.  Rutherford,  601  to  602. 
Archer  Thomas,  602  to  603. 
John  fl.  Phinney,  603. 
England  Thornton,  605  to  606. 
Thomas  Stnedlev,  606  to  607. 
John  Mitchell,  607. 
Parker  EUett,  607  to  608. 
Gilmore  Robinson,  608  to  609. 
Shirley  C.  Williams,609. 
Joseph  Ward,  610. 
Thomas  Curd,  610  to  611. 
Wm.  E.  Thomas,  612  to  613. 
Otway  Dandridge,  614. 
Samnel  Walton,  614  to 615. 
John  Duncan,  615  to  616. 
Jesse  Williams.  616  to  617. 
Wm.  W.  Clav,  617  to  619. 
Geo.  Seay,  619  to  620. 
Mason  Harris,  620. 
John  Allen,  621. 
James  Dell,  621  to  622. 
Lawrence  Latney,  622  to  623. 
Samuel  Tinslev,  623. 
Thos.  Tinsley,"623  to  624. 
Archer  Smith,  624  to  625. 
Albert  Johnson,  625  to  626. 
John  T.  Glasgow,  627  to  628. 
John  Logan,  626  to  632. 
Robt.  Green,  628. 
James  E.  Woodson,  629. 
Wilkin s  Harris,  629  to  630. 
Jacob  Jordan,  030  to  631. 
Charles  Claybrook,  631  to  632. 
Moses  Harris,  633. 
Robt.  R  Spencer,  634. 
Albert  T.  Scott,  634  to  635. 
Junius  R.  Smith,  635  to  636. 
Walter  Daniel,  636  to  637. 
John  W.  Williams,  637  to  638. 
Richard  Taylor,  638  to  639. 
William  Carrington,  639  to  642. 
John  Jasper.  642  to  643. 
David  Lee,  643  to  644. 
Beverly  Branch,  644  to  646. 
Albert  Jones,  646. 


Albert  Bundy,  646  to  647. 
Charles  H.  Thompson,  647  to  648. 
Geo.  L.  Motley,  648  to  649. 
Henderson  J.  Brown,  650  to  65L 
Peter  W.  Taylor,  652. 
John  D.  Frayser,  652  to  653. 
James  Armstrong,  695  to  697. 
W.  B.  F.  Thompson,  699  to  702. 
Isaiah  Tavlor,  702  to  705. 
T.  M.  Perkins,  706  to  707. 
Wm.  H.  Taylor,  707  to  711. 
Randolph  Taylor,  711  to  713. 
Ambrose  McKinney,  713  to  714. 
Louis  Christain.  715  to  716. 
Samuel  Cox,  716  to  717. 
Thomas  Thomp-son,  717  to  718. 
B.S.Garnett,718  to  720. 
Matt  Tavlor,  720  to  721. 
W.  H.Johnson.  721  to  722, 
Robt  McKenpv,  722  to  723. 
Rol)t.  Coleman,  723  to  724. 
Wm.  H.  Mosbv,  724  to  725. 
Henry  Gray,  725  to  727. 
I.  H.S<-olt,'727to728. 
J.  M.  Williams,  728  to  729. 
Samuel  Mayo,  729  to  730. 
Thomas  Giaham,  730  to  731. 
Samuel  D.  Payne.  731  to  733. 
Henrv  O.  Payne,  734. 
S.  M.  Ellington,  734  to  737. 
Robinson  Lucas,  738  to  741. 
Geo.  W.  Leake,  741  to  743. 
Geo.  Mimms,  743  to  747. 
William  Stanton,  747  to  750. 
William  W.  Hill,  750  to  7,52. 
James  Russell,  752  to  754. 
Samuel  Richardson,  754  to  766. 
Malachi  Griffin,  757  to  758. 
Andrew  Morgan,  759  to  760. 
Lewis  Williams,  760  to  762. 
C.  Washington,  762  to  764. 
Wilson  E.  Baker,  764  to  768. 
Charles  Williams,  708  to  769. 
Joseph  Taylor,  779  to  771. 
Boston  Ferrell,  771  to  773. 


In  the  fourth  precinct  he  also  claims  that  134  voters  thus  cast  their 
ballots,  and  that  122  of  these  voters  were  examined,  whose  names  we 
now  give,  and  we  refer  to  the  record,  where  their  depositions  mav  be 
found : 


Green  Robinson,  773  to  775. 
Henrv  Jones,  775  to  770. 
Washington  Hill,  776  to  77a 
Elisha  Jones,  778  to  781, 
James  H.  Burke,  781  to  782. 
Alexander  McCoy,  782  to  784. 
Elisha  Morris,  785  to  787. 
Alexander  Forrester,  787  to  789. 
Joseph  Jefferson.  789  to  791. 
Kirk  Mason.  791  to  793. 
Henry  Brooks,  793  to  794. 
Thos.  M.  Gaines.  794  to  796. 
Dorsey  Tavlor,  796  to  797. 
Chast'iue  Fisher,  798  to  799. 
William  Jackson,  799  to  800. 
John  Hamm,  800  to  802. 
Richard  Adams,  802  to  803. 
Mordecai  Q.  Jones,  803  to  804. 
A.  P.  Fleet,  805  to  806. 
Bright  Granger.  806  to  807. 
Peyton  Rice,  808  to  809. 
Junius  Roberts,  809  to  811. 
Sydney  Johnaon,  811  to  813. 
Edraond  Foster,  813  to  814. 
William  H.  Price,  814  to  816. 
John  T.  Allen,  816  to  818. 
Sandy  Robinson,  818  to  820. 


James  Hansbnry,  820  to  821. 
William  Wells,  821  to  822. 
Joseph  Wells,  822  to  823. 
Edward  C  Roman,  832  to  834. 
Alfred  T.  Baker,  834  to  836. 
Daniel  Edmund,  836  to  838. 
Thos.  R.  Hewlett,  838  to  839. 
Cornelius  L.  Harris,  840  to  842. 
William  Braxton,  842  to  843. 
Chas.  Goodwin,  844  to  846. 
Jack  Gaines,  846  and  892. 
Wellington  Booker,  848  to  849. 
William  Bell,  851  to  853. 
Stephen  D.  Turner,  854  to  855. 
R.  Emmett  Harris,  855  to  857. 
Gray  Evans.  857  to  859. 
Walt«r  S.  Howard,  860  to  861. 
Robt.  Crittenden,  862  to  863. 
David  Hill,  863  to  865. 
Edward  Carter,  865  to  866. 
William  Harris,  866  to  868. 
Collin  T.  Valentine,  868  to  870. 
Jos  H.  Patterson,  870  to  871. 
Timothy  Harris,  871  to  872. 
W.  P.  Dabney,  873  to  875. 
James  Jones,  875  to  877. 
John  Holmes,  877  to  879. 


Edward  Norris,  879  to  881. 
Joseph  Custalo,  881  to  883. 
Robert  George,  883  to  885. 
Washington  Moody,  885  to  887. 
Robert  Walker,  887  to  889. 
Dandridge  Stevens,  890  to  892. 
Wise  Jackson,  892  to  893. 
Chris.  Blunt.  893  to  894. 
Lewis  Thompson,  895  to  897. 
Winston  Poindexter,  898  to  899. 
James  Thomas,  899  to  901. 
James  Lawson,  901  to  903. 
Kathaniel  White,  903  to  904. 
Wm  .Washington,  904  to  907. 
A.  Reed,  907  to  910. 
W.  H.  Lewis,  910  to  911. 
Henry  Warner,  911  to  916. 
Alfred  Dickerson,  916  to  917. 
Addison  Lewis,  917  to  919. 
Daniel  Overton,  919  to  921. 
Wyate  Hubbard.  921  to  923. 
Robt.  Tavlor,  923  to  925. 
Henry  Timberlake,  925  to  927. 
Robt.  Johnson,  927  to  928. 
Allen  A.  Armstead,  928  to  93a 
John  Griffin,  930  to  9:!2. 
W.  £.  Hope,  932  to  934. 


208 


WADDILL    VS.    WISE. 


Kobt.  Beazlej-,  934  to  937. 
Geo.  F.  McKenney,  937  to  940. 
Charles  W.  Frost,  940  to  942. 
Sautee  N.  Lundy,  942  to  944. 
A.  A.  Patterson.  944  to  946. 
Frank  Horton,  946  to  948. 
Au-stin  J.  Miller,  £48  to  95C. 
Moses  P.  Randolph,  950  to  951. 
Robert  Taylor,  951  to  953. 
James  Wells,  953  to  955. 
Lewis  Trent,  955  to  957. 
C.  A.  Booker,  957  to  958. 


William  Lightfoot,  958  to  959. 
Dutch  Kelley,  959  to  961. 
Philip  Daniel,  961  to  963. 
John  Law,  963  to  965. 
James  Brooks,  965  to  966. 
Napoleon  Joties,  967  to  968. 
J.  C.  Harris,  968  to  970. 
Win.  R.  Robinson,  970  to  972. 
D.  E.  Robinson,  972  to  973. 
Philip  Daniel,  974. 
William  Randolph,  974  to  975. 
Jno.  Thos.  Baker,  975  to  977. 


Joseph  Jackson,  977  to  978. 
James  Morton,  979  to  980. 
R.  J.  Allen,  981  to  984. 
Frank  Uicks,  984  to  986. 
Moses  Lewis,  9i-6  to  988. 
William  Ganiett,  9^8  to  990. 
John  Edmunds,  990  to  991. 
Samuel  Brown,  991  to  993. 
Leander  Waller,  993  to  995. 
Jos.  T.  Stewart,  995  to  997. 
Z.  Newton,  jr.,  998  to  999. 


The  evidence  clearly  shows  that  from  457  to  722  legal  voters  ineffect- 
ually attempted  to  cast  their  ballots  for  the  contestant  in  Jackson 
ward.  It  will  not  be  necessary  to  discuss  the  evidence  as  to  the  exact 
number,  for  if  this  class  of  votes  is  to  be  counted  for  contestant  he 
would  be  entitled  to  his  seat  upon  the  smallest  number  that  the  evi- 
dence could  be  fairly  held  to  show.  We  are  of  the  opinion  that  at  the 
least  457  of  such  votes  are  clearly  shown,  which  is  more  than  sufficient 
to  overcome  the  majority  of  261  returned  for  contestee. 

Many  of  the  colored  voters  fell  in  line  the  night  before  the  election, 
prepared  to  vote.  These  three  precincts  were  inhabited  by  a  large 
colored  population,  and  a  large  majority  of  the  voters  were  Republi- 
cans and  favorable  to  the  contestant.  A  report  had  gone  out  that 
contestee's  friends  had  made  an  arrangement  to  delay  the  vote  in  these 
precincts  for  the  purpose  of  reducing  the  anticipated  majority  for  the 
contestant.  That  such  procedure  was  anticipated  and  feared  i8  evident 
from  the  fact  that  the  day  before  the  election  George  Duncan,  Federal 
supervisor,  wrote  to  M.  F.  Pleasants,  the  chief  supervisor,  calling  his 
attention  to  this  method  of  obstructing  the  election. 

We  set  out  this  correspondence  from  1624,  1625  of  the  record  : 

EiCHMOND,  Va.,  Nov.  5th,  1888. 
To  M.  F.  Pleasants,  Esq,  Chief  Supervisor: 

Sir:  I  am  Federal  supervisor  of  election  at  first  precinct,  Jackson  ward,  and  as 
snch  am  anxious  to  be  informed  as  to  my  duties  as  such  supervisor  at  my  precinct. 
The  chief  trouble  is  to  poll  our  vote  in  consequence  of  the  large  unmber  of  persons 
on  the  registration  books,  and  the  manner  in  which  the  ofiScers  of  election,  and  those 
who  wish  to  prevent  a  fnll  vote,  conduct  themselves ;  for  instance  challengers  who 
desire  to  prevent  the  polling  of  a  full  vote  systematically  challenge  the  whole  colored 
vote  as  it  comes  to  the  polls  by  asking  all  sorts  of  ridiculous  questions.  For  instance, 
of  a  citizen  who  has  resided  within  a  stone's  throw  of  a  precinct  for  twenty  years 
and  is  seventy  years  old,  whether  he  lives  in  the  precinct,  how  long  he  has  resided 
there,  when  he  moved  in,  whether  he  is  twenty-one  years  of  age,  when  he  became  of 
age,  when  he  was  born,  where  his  parents  reside,,  where  was  he  born,  and  such  like 
foolish  and  irrelevant  questions.  To  these  the  judges  of  election  quietly  li.sten  and 
encourage  until  on  an  average  five  minutes  are  consumed  in  voting  a  colored  man, 
and  at  sunset  there  is  left  iu  line  a  large  number  of  qualified  voters  deprived  of  the 
right  of  suffrage  and  who  have  been  in  line  with  tickets  in  hand,  for  ten  hours, 
seeking  an  opportunity  to  vote.  Is  there  not  some  Federal  statute  covering  this  class 
of  interference  with  elections  and  making  it  impossible  for  these  colored  citizens  to 
cast  their  ballots  ? 

I  am,  with  great  respect,  your  obedient  servant, 

George  Duncan. 


Richmond,  Va.,  Nov.  5th,  1888. 
To  George  Duncan,  Esq., 

Supervisor  of  Election,  First  Precinct,  Jackson  Ward,  Richmond,  Va.: 

Sir  :  In  reply  to  your  letter  of  this  date  I  have  no  hesitation  in  saying  that  the  acts 
referred  to  therein  are,  in  my  opinion,  a  clear  violation  of  section  550G  of  the  Revised 
Statutes  of  the  United  States  and  render  them  perpetrators  liable  to  the  fine  and  im- 
prisonment prescribed  by  that  section.     That  section  is  as  follows:  * 

Seciion"  5506.  Every  jperaon  who,  by  any  unlawful  means,  hinders,  delays,  prevents, 
or  obstructs,  or  combines  and  confederates  with  others  to  hinder,  delay,  prevent,  or 
obstruct,  any  citizen  firom  doing  any  act  required  to  be  done  to  quaiify  hiw  to  vote, 


WADDILL    VS.    WISE.  209 

or  from  voting  at  any  election  in  any  State,  Territory,  district,  county,  city,  parish, 
township,  school  district,  municipality,  or  other  territorial  subdivision,  shall  he  fined 
not  less  than  five  hundred  dollars,  or  bo  imprisoned  not  less  than  one  month,  nor  more 
than  one  year,  or  be  punished  by  both  such  fine  and  imprisonment. 

M.  F.  Pleasants, 

Chief  Supervisor. 

Evidence  was  introduced  supporting  the  claim  that  there  was  a  con- 
spiracy to  prevent  the  voters  from  casting  their  ballots  and  we  give  a 
portion  of  the  evidence. 

David  Robinson  (first  precinct) — p.  259-'60 : 

8th.  Question.  State  whether  or  not  you  had  a  conversation  with  Mr.  Cottrell,  the 
Democratic  judge  of  election  at  this  precinct,  and  if  so  state  when  it  took  place  and 
what  was  its  purport? — Answer.  The  night  after  registration,  which  was  ten  days 
previous  to  election,  I  was  in  his  bar-room.  I  was  talking  about  the  number  of  votes 
which  would  have  to  be  cast  on  the  day  of  election,  and  he  said  to  me  that  you 
would  not  cast  more  than  400  votes  at  this  poll  on  the  day  of  election.  I  inquired 
of  him  diligently  to  tell  me  why,  and  he  did  not  give  me  definite  answer. 

Edward  Thompson— p.  1441 : 

Question  15.  Heard  Bilvin  say  in  the  morning  that  he  intended  to  hold  that  vote 
down  that  day  within  300. 

Ira  Benedict— p.  63: 

Question  2.  I  think  on  the  day  before  the  election,  November  the  5th,  at  the  ter- 
minus of  the  Richmond  Union  Passenger  Railway,  29th  and  P  streets,  Marshall  ward ; 
present,  Mr.  Timberlake,  one  of  the  judges  of  election,  first  precinct,  Jackson  ward, 
Mr.  Buck  Adams  and  Capt.  Peter  Smith,  and  good  many  others  whose  names  I  do  not 
know.  Mr.  Adams — rather  Mr.  Timberlake — remarked  first  that  he  calculated  having 
the  handling  of  about  1,200  negro  votes  in  Jackson  ward.  Mr.  Adams  then  remarked 
that  we  will  sht  t  out  about  half  of  them.  Mr.  Timberlake  in  I'eply  said,  "  Right  you 
are,  partner."  I  do  not  know  whether  there  is  anything  else  ;  but  there  is  :  I  now 
recall  another  remark  by  one  of  the  employes  of  the  railroad  :  "  Timberlake,  you  are 
a  damn  fool  for  talking  that  way.  You  will  get  yourself  into  trouble."  I  believe 
that  is  all  I  remember  now. 

Peter  Smith — p.  1460; 

Question  3.  Heard  and  corroborates  above  statement  of  Benedict. 

M.  M.  Williams— p.  71 : 

Question  2.  Timberlake  said  he  had  shut  out  enough  votes  in  Jackson  ward  to 
elect  Wise. 

W.  C.  Rhodes— p.  75 : 

6th.  Question.  Have  you  had  any  conversation  with  any  of  the  judges  of  that  elec- 
tion ;  if  so  where  and  what  was  said? — Answer.  The  day  before  the  election  I  was 
in  conversation  with  W.  L.  Timbex-lake,  judge  at  the  first  precinct,  Jacksou  ward,  I 
think.  He  said,  "  We  are  going  to  carry  Jackson  ward  for  Cleveland,  Thurman,  aud 
George  D.  Wise,  I  bet  you."  I  said  to  him,  '♦  You  must  be  crazy  ;  how  can  that  be 
done  when  the  ward  gives  from  1,800  to  2,500  majority  ?"  He  says,  "Weil,  we  are 
going  to  knock  them  out." 

H.  P.  Harper— p.  69 : 

Question  2.  Heard  young  man  traveling  with  Elector  EUett  and  City  Attorney  Mere- 
dith, at  first  precinct,  say  constitutional  ballots  were  to  be  used  to  hinder  and  delay 
the  election. 

Geo.  Duncan  (U.  S.  supervisor,  first  precinct),  p.  1380-'81 : 

Question  26.  Heard  Cottrell  and  Timberlake,  judges,  and  Smith  and  Belvin,  chal- 
lengera,  during  the  latter  part  of  the  day  congratulating  themselves  on  the  success  of 
their  efforts  in  keeping  out  votes. 

Edward  Thompson,  p.  1443 : 

Question  15.  Thompson  was  ward  superintendent.  "  Once  during  the  day  I  ap- 
pealed to  Mr.  Belvin  to  allow  us  to  poll  our  vote."  He  said,  "  Thompson,  this  is  life 
or  death  with  us." 

John  H.  Campbell,  p.  179: 

Question  2.  Heard  a  gentleman  come  up  and  ask  one  of  the  gentlemen  with  the 
disfranchised  Itsts  if  he  had  voted  that  man  he  sent  up  ?  He  said  no,  but  we  delayed 
the  election  about  ten  minutes,  and  that  was  better  than  his  vote. 

H.  Mis.  137 14 


210  WAPDTLL    VS.    WISE. 

John  W.  Graves,  p.  138 : 

Qnestion  3.  When  approaching  polls  to  vote  in  white  line  was  whispered  to  by  the 
assistant  challenger,  who  said,  '*  Delay  them  all  you  can."  Upon  enquiring  as  to 
what  was  said,  the  challenger  said,  •'  When  judge  questions  you  in  regard  to  the  con- 
stitutional amendment,  ask  him  what  it  means,  what  it  is  for,  and  all  about  it." 

J.  W.  Tyler,  p.  84 : 

Question  3.  "  Glazebrook,"  challenger,  was  challenging  nearly  every  voter.  Wel- 
ford,  the  lawyer,  remarked,  ''  Let  those  vote  who  are  eatitled  to  it."  Glazebrook 
winked  at  the  time,  and  said  the  more  votes  that  were  challenged  there  would  be 
shnt  out  at  the  close. 

Frank  Mann  (fourth  precinct),  p.  158 : 

Question  6.  Heard  statement  of  Finnerty  and  Gentry,  judges  at  fourth  precinct,  as 
follows  :  The  night  before  the  election — on  Monday  night — me  and  a  friend  of  mine 
was  passing  down  Seventeenth  street,  and  I  heard  Mr.  Finnerty  tell  Mr.  Gentry  to 
vote  the  niggers  slow.  I  said  to  him,  "  Hi,  Mr.  Finnerty,  are  yon  going  to  vote  us 
to-night?"  1  said  to  Mr.  Finnerty,  "  I  will  see  you  to-morrow."  Well,  the  next  day 
when  they  took  recess  after  voting  up  to  12  o'clock  he  says  to  me,  "Frank,  we've 
got  you  to-day."  Then  I  said  to  him,  "You  recollect  last  night  when  you  told  Mr. 
Gentry  to  vote  us  all  slow."  I  told  him  in  the  presence  of  Mr.  Rankin  and  Mr.  Hagan 
when  he  was  coming  out  of  Mr.  Hagan's  door  what  I  have  just  said.  He  just  laughed 
at  me.  • 

James  H.  Barrett,  p.  209 : 

2d  Question.  Where  were  you  on  the  evening  before  the  6th  day  of  November  last, 
and  what  occurred  with  reference  to  the  election  to  be  held  the  next  day  ?  Answer. 
I  was  coming  down  Seventeenth  street  between  7  and  8  o'clock  in  the  evening,  and 
Frank  Mann  overtaken  me  by  the  elevator.  We  were  on  our  way  to  the  Kepublican 
headquiirters.  When  we  arrived  opposite  Venable  street  we  met  Mr.  Finnerty  and 
Mr.  Gentry  talking.  As  we  arrived  opposite  them  heard  Mr.  Finnerty  say  to  Mr. 
Gentrj',  "  Vote  these  niggers  slow  to-morrow. "  His  reply  was,  "  All  right.  "  At  that 
time  I  had  gott«n  by  them  and  did  not  hear  any  more  that  passed.  My  friend 
Frank  Mann  stopped  and  said  something  to  them  and  then  overtaken  me. 

Governor  James  H.  Harvey,  p.  195 : 

10th  Question.  State  whether  or  not  you  heard  any  one  say  anything  about  the 
voting  in  Jackson  Ward  ?  Answer.  I  heard  at  the  polls  a  great  many  say  the  votiug 
was  purposely  delayed  in  order  to  hinder  the  colored  voters  from  casting  their  ballots. 
After  the  polls  were  closed  at  night,  while  waiting  in  front  of  the  Dispatch  office,  I 
heard  a  man  state  (I  inquired  his  name  and  I  was  told  he  was  Pettit)  that  he  had 
had  the  pleasure  that  day  of  seeing  500  or  600  negroes  cut  out  of  their  votes.  He 
said  he  had  been  carrying  refreshments  from  Binford's  out  to  the  boys  in  Jackson 
Ward. 

Wm.  Walter  Coldwell,  p,  135. 

Ans.  On  the  night  of  the  election,  while  waiting  to  see  the  returns  as  flashed  on  the 
canvas  at  the  Despatch  office,  I  heard  some  one  say,  "How  are  you  Mr.  Hughes?" 
The  answer  came  back,  "How  are  you,  Harwood ;  how  has  it  gone  in  Jackson  Ward  ?" 
On  that  I  immediately  turned,  and  my  elbow  or  my  body  touched  ex-Mayor  Taylor,  of 
Manchester.  Harwood  replied,  "We  have  done  better  than  we  expected."  I  don't 
mean  to  say  these  are  the  exact  words,  but  they  give  the  substance.  Mr.  Hughes 
answered,  "How  many  have  you  thrown  out?"  Mr.  Harwood  replied  by  saying 
"  From  seven  to  eight  hundred."  Mr.  Hughes  inquired,  "  How  did  you  do  it  f"  Har- 
wood's  reply  was,  "  Why,  it  took  two  hours  and  forty- live  minutes  to  vote  one  man. 
I  sent  him  to  his  house  four  times  for  his  number.  He  would  come  back  one  time 
and  I  would  tell  him  it  is  wrong;  go  back  and  get  it  again."  Ex-Mayor  Taylor  then 
said  to  Mr.  Harwood,  "  Was  that  an  unavoidable  delay,  or  a  natural  delay  f"  These 
are  his  exact  words.  Mr.  Harwood's  answer  was,  "We  fixed  everything  hist  night, 
but  we  have  done  better  than  we  thought  we  would."  Ex-Mayor  Taylor  then  de- 
nounced it,  and  said  that  it  was  an  outrage,  and  no  wonder  that  the  Northern  press 
denounced  and  condemned  the  Southern  people  for  such  outrage.  I  had  no  part  in 
the  conversation. 

The  plan  complained  of  by  Mr.  Duncan  was  carried  oat  fully  by  ad- 
herents of  the  coutestee  and  resulted  in  the  exclusion  of  more  than 
enough  votes  for  contestant  to  change  the  result.  The  object  of  the 
persons  engaged  in  this  mode  of  disfranchisement  clearly  appears  when 
it  is  known  that  out  of  all  the  great  number  of  voters  who  were  pre- 
vented from  voting  none  of  them  belonged  to  the  political  party  of  the 


WADDILL    VS.    WISE.  211 

contestee.    The  evidence  upon  this  question  is  very  voluminous  and  we 
will  give  a  few  brief  extracts  to  show  its  general  character. 

B.  C.  Stokes,  a  colored  election  judge,  testifies : 

14th.  Question.  How  did  they  obstruct  the  polls? — Answer.  By  crowding  np  on  the 
little  narrow  window  they  voted  at,  occupying  about  half  the  little  narrow  window, 
and  this  way  crowding  voters  and  those  friends;  other  stranger  challengers,  they 
would  ask  an  old  man  about  sixty  years  old,  with  gray  hair,  whether  he  was  twenty- 
one.  The  old  colored  man  would  say  in  those  cases — he  would  take  off  his  hat  and 
say,  look  at  my  bald  head  and  see. 

'20th.  Question.  Repeat,  as  near  as  you  can,  the  kind  of  questions  they  would  ask, 
them. — Answer.  How  old  are  you ;  what  is  your  age ;  where  do  you  live ;  what 
street,  number  (great  many  Questions  asked  at  times  whether  they  live  in  Chester- 
field County  or  Henrico) ;  how  long  you  been  living  in  the  State,  city ;  sometimes  a 
man  would  give  his  number  of  house,  and  if  it  did  not  agree  on  his  book  with  the 
name,  that  is  the  poll-book,  registration-book,  though  it  was  proven  that  was  the 
right  man,  they  would  send  him  off  to  get  his  number. 

tilst.  Question.  Do  you  mean  that  they  wouldn't  let  a  man  vote  if  there  was  a  dif- 
ference in  the  number  of  his  house  on  the  same  street  between  the  registration-book 
and  his  answer  to  the  question? — Answer.  Yes,  sir;  they  wouldn't  let  him  vote. 

22nd.  Question.  Were  any  objections  made  during  the  day  to  the  occupying  of  the 
window  by  Mr.  Belvin  and  others? — Answer.  There  was  objection  made  by  Mr.  Dun- 
can, Stokes,  myself,  by  Mr.  Allan ;  and  the  Democratic  challengers  threatened  to 
have  Mr.  Edgar  Allan  arrested  for  objecting  to  their  obstructing. 

Answer  to  25th  question.  Belvin  was  arrested. 

4yth.  Cross-question.  You  have  said  that  Mr.  Belvin  threatened  to  have  Mr.  Allan 
arrested.  What  called  forth  this  remark  ? — Answer.  Mr.  Allan  was  instructing  the 
voters  as  they  came  to  the  wiudow  to  say  "  Presidential  ticket  only,"  in  order  to 
save  dispute  as  to  whether  they  wanted  to  vote  about  the  constitutional  question. 

Answer  to  Ist  question  on  re-examination.  I  think  his  questions  were  very  un- 
necessary. In  my  judgment,  to  obstruct  the  election,  that  we  might  not  have  a  fair 
representation  of  the  vote  of  the  precinct. 

A.  C.  RocKECHARLiE,  who  was  the  clerk  in  taking  the  ballots  and  keeping  a  list  of 
persons  who  were  prevented  from  voting,  testifies  : 

Answer  to  2d  question.  Belvin  took  up  half  the  window  and  challenged  about  70 
per  cent,  of  the  voters,  assisted  by  Smith,  Briggs,  and  other  comrades,  and  that  Mr. 
Epps,  sergeant  of  police,  had  the  constitutional  card  read  over  twice,  pretending  he 
did  not  understand  it,  and  consumed  over  three  minutes. 

4th  question.  Smith  said  he  wanted  to  kill  time. 

3d.  Question.  Look  at  the  said  memorandum  book  as  far  as  you  can  recollect  it  was 
made  at  the  time,  and  give  the  names  of  any  parties,  after  thus  refreshing  your  mem- 
ory, that  participated  in  said  election,  and  state  whether  and  what  they  so  did  when 
they  were  engaged  in  an  eflbrt  to  facilitate  the  voting,  or  to  make  it  impossible  to 
poll  the  full  vote.  When  this  diversion  in  reference  to  the  memorandum  book  which 
you  have  now  produced  took  place  you  were  giving  certain  names.  I  ask,  in  answer 
to  the  question,  that  you  go  on  with  any  additional  names,  as  far  as  you  can  do  so  by 
refreshing  your  memory  from  said  book. — Answer.  Hillary  Jones  I  noted  out  there 

There  was  an  Italian  (or  of  some  foreign  nationality)  out  there  named  DoHiinnici 
K.  Perross.  He  was  challenged  by  Belvin,  and  Cottrell  asked  him  if  he  wanted  to 
vote  on  the  constitution.  The  constitutional  law  was  read  to  him.  Belvin,  finding 
out  how  the  vote  stood,  withdrew  his  objection  as  challenger;  that  is,  finding  out  it 
was  a  Democratic  ballot,  he  withdrew  said  objections.  Another,  named  A.  Perross, 
he  called  for  the  reading  of  the  constitutional  law,  and  didn't  vote  the  ticket  afterit 
was  read  to  him.  He  was  prompted  by  Belvin  as  to  the  reading  of  the  law.  Another, 
named  M.J.  (or  G.)  Dugin.  I  am  giving  these  names  from  memory.  Cottrell,  the 
judge,  who  took  tickets — I  suppose  he  was  judge.  He  asked  Mr.  Dugin  if  he  (Dugin) 
wanted  to  vote  on  the  constitution  and  have  him  (Cottrell)  to  read  and  explain  the 
law  to  him.  I  suppose  between  three  and  four  minutes  were  consumed.  There  was 
a  colored  citizen  nambd  Thomas  Coak,  or  Cork,  came  up  to  vote.  Cottrell  asked  him 
his  name.  He  said,  "  My  name  is  ThomasCork."  Belvin  says — I  suppose  you  would 
style  it  judge,  who  was  looking  over  the  colored  book — Belvin 

(The  witness  here  desires  the  word  "says,"  above  in  the  incomplete  sentence  "  Bel- 
vin says,"  struck  out  and  changed  to  "  hollowed  at  him.") 

Belvin  hollowed  to  the  Judge  that  his  name  begins  with  a  "  K."  Belvin  knew  at 
the  time  that  it  began  with  a  "  C,"  for  he  held  his  finger  on  the  name  in  the  chal- 
lenger's book.  Another,  named  Geo.  Mirams,  was  rejected  because  he  gave  the 
wrong  number  of  his  house,  though  he  claimed  to  live  in  the  same  precinct.  Isaac 
Christian  was  challenged  by  Smith — that  is,  Harry  Smith ;  peremptory  was  the  word 
■  he  used.    I  don't  know  what  he  means  by  it.    Collauuan  was  another,  I  believe,  N. 


212  WADDTLL    VS.    WISE. 

G.  He  called,  ratter  asked,  tliAt  this  constitutional  law  be  explained  to  him.  Cot- 
trell,  the  judge,  read  the  law  to  him;  he  consumed  time  between  two  and  three 
minutes.  Another  named  Thorps.  I  think  Robert,  I  am  not  positive  as  to  Chas.  He  was 
challenged  by  both  Smith  and  Belvin.  Belvin  says,  "  Hsilloo,  Jack,  what  kind  of 
ticket  is  that  you  have  got  ?"  Smith  says  to  Belvin,  ask  him  if  he  was  sick.  Belvin 
did  ask  him  the  questiou.     The  time  consumed  was  nearer  four  than  three  minutes. 

Answer  to  10th  question.     Cottrell  very  slow  in  reading  the  oath. 

11th.  Question.  State  whether  the  colored  voters  voted  generally  on  the  constitu- 
tional convention  question  or  not,  and  state  what  happened  in  reference  to  their 
desire  to  vote  or  not  to  vote  on  said  proposition  if  anything. — Answer.  I  haven't 
any  recollection  of  seeing  any  colored  voter  voting  on  the  constitutional  convention. 
Mr.  Belvin  would  frequently  a«k  colored  voters  would  they  desire  to  vote  on  these. 
They  said  no,  or  refused.  Smith,  Belvin,  and,  I  think,  Briggs,  would  hollow,  "  Read 
the  law."  Mr.  Belvin  objected  to  one  man  getting  out  the  line  until  he  did  vote  on 
the  constitutional  question. 

l5ith.  Question.  What  part,  if  any,  did  Judge  Cottrell  take  in  reference  to  voting 
on  the  constitutional  question  T — Answer.  Cottrell  frequently  asked  the  same  ques- 
tion, whether  he  desired  to  vote  on  the  constitutional  question.  Refused  and  hol- 
lowed, "No,  the  Presidential  ticket." 

13th.  Question.  State  if  you  know  who  distributed  or  took  part  in  distributing 
these  constitutional  convention  tickets. — Answer.  Mr.  Cottrell  distributed  a  good 
many,  and  some  of  the  challengers;  who  they  were  I  don't  know, 

Lewis  Stewart — page  45 : 

Answer  to  3rd  question.  Belvin  challenged  first  voter  at  polls  and  then  every  other 
man. 

7th  question.  Smith  and  others  had  books  of  lists  of  disfranchised  voters  in  Henrico 
and  Dinwiddie  Counties. 

8th.  Question.  State,  if  you  remember,  the  kind  of  questions  put  by  these  chal- 
lengers to  the  voters. — Answer.  I  don't  know  how  many,  but  can  tell  the  character 
of  them.  First  ask  a  man  who  would  apply  to  vote,  gray-headed  men  who  looked  to 
be  fifty  or  sixty  years  old,  they  ask  him  his  age,  where  was  he  born,  how  many 
children  he  bad;  have  you  ever  been  out  the  United  States;  have  you  ever  been  to 
the  penitentiary,  and  many  cases  I  heard  them  ask  them  who  was  their  master's 
name. 

9th.  Question.  Did  you  notice  any  particular  conduct  when  white  men  would  come 
up  to  vote  ? — Answer.  When  white  men  would  apply  to  vote  I  heard  Mr.  Belvin  and 
Mr.  Smith  tell  them  have  the  constitution  explained  to  them,  and  delayed  as  much 
time  as  they  could  with  them. 

14th.  Question.  How  did  Mr.  Cottrell  act  in  receiving  these  ballots  and  in  deposit- 
ing them  ? — Answer.  When  a  voter  would  apply  they  would  ask  him  his  name  and 
number,  and  after  the  clerks  on  the  inside  had  found  his  name  and  number  and  hol- 
lowed out  all  right,  he  would  hold  that  ticket  in  his  hands  till  Mr.  Belvin  could  look 
over  his  books  and  tell  him  all  right,  let  him  vote,  and  then  he  would  ask  voters, 
•'  What  kind  of  ticket  is  that  you  have  got  f  "  The  voter  would  say,  "  You  have  no 
right  to  ask  me  what  kind  of  ticket  I  have  got ;  "  and  then  he  would  ask  him,  "  Do 
you  want  to  vote  on  the  constitution  T  "  The  voter  would  say,  "  No  ;  deposit  my  bal- 
lot;" and  then  say,  "  Perhaps  you  don't  understand  it;  I  will  explain  it  to  him." 
Mr.  Cottrell  said  this. 

Answer  to  16th  question.  Judge  Waddill  and  Allan  tried  to  put  a  stop  to  it,  but 
could  not. 

Answer  to  18th  and  19th  questions.  Cottrell  absent  ten  minutes  and  bnly  one  vote 
cast,  as  Belvin  objected. 

Answer  to  23rd,  24th,  and  25th  questions.  Allan  would  expedite  finding  names  and 
challengers  talked  of  having  him  arrested. 

Answer  to  27th  to  30th  questions.  Police  would  not,  on  request,  remove  crowd  from 
around  the  polls.  Captain  of  police  snatched  scantling  from  Judge  Waddill  which 
would  have  prevented  crowding. 

Page  49,  questions  24 — 5.  The  crowd  of  the  voters  did  not  delay  voting. 

Answer  to  question  55.  How  Mr.  Allan  so  quickly  found  the  names  on  book. 

Answer  to  96th  question.     Voters  asked  how  many  children  they  had. 

Page  54 — Re-examination  by  Judge  Waddill : 

2nd.  Question.  In  the  one  hundred  and  twenty-seventh  X.-Q.  you  were  asked  as 
follows:  "  If  they  were  told  to  say,  'for  President  only,'  to  avoid  that  question,  then 
is  it  not  a  fact  that  Mr.  Cottrell  did  ask  that  question  f  "  I  now  ask  you  to  explain 
why  it  was  that  it  became  necessary  that  any  instruction  should  have  been  given- to 
the  Republican  voters  as  to  what  they  should  say  in  reference  to  the  ticket  they 
proposed  to  vote  as  they  presented  their  ballot  to  jfudge  Cottrell. 

Answer.  Mr.  Cottrell  would  ask  every  voter  that  applied  to  vote  what  kind  of 
ticket  is  that  you  have,  and  after  being  told,  would  then  ask  him  if  he  would  then 


WADDILL    VS.    WISE.  213 

vote  on  the  constitution,  and  offered  to  explain  it  without  heing  asked.  Then  it  was 
thought  by  the  Republicans  that  it  might  stop  Mr,  Cottrell  from  asking  that  ques- 
tion, provided  they  were  told  before  they  reached  the  polls  what  kind  of  ticket  they 
had;  it  did  not,  however.  He  continued  to  ask,  notwithstanding  he  was  told,  "for 
President  only." 

3rd.  Question.  You  were  asked  in  the  one  hundred  and  fourth  X.-Q.  as  fol- 
lows :  "Are  the  colored  people  or  not  so  ignorant  as  not  to  know  the  number  of  their 
houses?"  And  you  say,  "  There  are  some  colored  people,  old  ones  especially,  who 
have  never  had  the  advantages  of  schooling,  who  know  nothing  whatever  of  num- 
bers, and  they  are  more  than  apt  to  forget  their  numbers."  I  now  ask  you  to  explain 
whether  the  character  of  questions  asked  by  these  challengers  and  the  manner  in 
wnich  said  challengers  conducted  themselves  were  calculated  to  expedite,  aid,  and 
assist  this  class  of  old,  ignorant,  and  infirm  voters  in  casting  their  ballots,  or  were 
they  calculated  to  mix  up  said  .^voters  and  to  delay  and  kill  as  much  time  with  them 
as  possible  on  account  of  their  ignorance  and  old  age? 

(Question  objected  to  because  it  is  leading,  and  because,  whilfe  it  asks  the  witness 
"to  explain,"  it  really  asks  him  to  repeat  what  he  has  already  said.) 

Answer.  No,  sir;  they  were  not  calculated  to  expedite  or  assist,  but,  on  the  con- 
trary, they  would  take  advantage  of  an  old,  ignorant  man  by  asking  him  all  sorts  of 
foolish  questions. 

Answer  to  4th  cross-question,  p.  55:  Belvin  sent  on  to  United  States  grand  jury. 

Answer  to  6th  and  7th  cross-questions :  White  and  colored  voted  alternately,  but 
no  white  votes  left  out. 

Walter  R.  Lomax,  p.  59 : 

5th.  Question.  State  as  far  as  you  can  why  the  said  vote  was  not  polled  or  anything 
you  saw  that  prevented  it. — Answer.  The  judge  consumed  a  lot  of  time  by  holding 
the  ballot  in  his  hand  and  asking  Mr.  Belvin  if  he  was  ready.  Every  now  and  then 
Mr.  Smith  would  hollow,  "Let  us  read  the  law,"  and  they  would  read  the  law.  Mr. 
Belvin  would  take  a  considerable  time  to  find,  a  name,  notwithstanding  the  clerk  on 
the  inside  had  ^ound  it.  They  would  never  vote  a  man  until  Mr.  Belvin  found  his 
name  on  the  outside. 

6th.  Question.  State,  please,  who  Messrs.  Belvin  and  Smith  are,  to  whom  you  have 
referred,  and  what  they  were  doing  there  that  day. — Answer.  Mr.  Belvin  was  a  chal- 
lenger, I  think.  I  don't  know  what  Mr.  Smith  was.  I  know  he  was  at  the  polls  all 
day  interfering  with  the  voters.  They  were  Democrats.  They  seemed  to  be  there  to 
keep  people  from  voting — to  keep  Republicans  from  voting. 

7th.  Question.  Was  there  anything  to  be  voted  on  or  for  other  than  the  Presiden- 
tial and  Congressional  election  ?  And,  if  so,  state  whether  any  time  was  lost  on  that 
account,  and  how  lost. — Answer.  A  constitutional  question.  Time  was  lost  on  this 
account :  The  judge  was  distributing  these  tickets  every  five  or  ten  minutes  to — I  don't 
know  whether  he  handed  them  out  to  Mr,  Smith  or  Mr.  Belvin — but  he  did  not  hand 
them  to  colored  people.  No  colored  people  asked  for  them.  When  a  white  gentle- 
man would  come  up  he  would  get  one  of  those  constitutional  tickets.  Then  the  judge 
would  stop  and  read  it  to  them,  and  then  Mr.  Belvin  would  say  to  the  judge  that  the 
voter  don't  understand  it,  and  then  the  judge  would  explain  it  to  him. 

8th.  Question.  State  if  you  heard  Mr.  Belvin  or  Smith  say  anything  to  the  voters 
as  they  would  approach  the  window  as  to  what  they  would  do  in  reference  to  the 
constitutional  question    when  ofifering  to  vote. 

Answer.  I  heard  Mr.  Belvin,  since  I  come  to  think,  tell  the  voters  to  have  that  con- 
stitutional question  read.    I  didn't   hear  Mr.  Smith  say  anything.    I  can't  say  I  did. 

9th.  Question.  What  would  the  voter  whom  Mr.  Belvin  thus  requested  the  constitu- 
tion to  be  explained  to  do,  and  what  would  the  judge  of  the  election  do  ?  And  tell 
all  that  would  then  happen. — Answer.  He  would  have  the  ticket  read  by  the  judge 
of  election.  The  judge  would  read  it.  Then,  after  he  would  read  it,  the  voter 
would  tell  the  judge  he  didn't  understand  it,  and  the  judge  would  then  explain  it. 
This  is  all  I  can  remember. 

14th.  Question.  Did  you  hear  Mr.  Belvin  say  or  do  anything  when  the  voter  would 
explain  that  he  only  wanted  to  vote  the  one  ticket,  or  when  other  persons  explained 
to  the  Voter  that  they  should  only  off'er  to  vote  the  one  ticket  ?— Answer.  Mr.  Belvin 
would  object  to  their  saying  the  Presidential  ticket  only.  I  can't  say  he  stopped  it, 
but  he  objected. 

15th.  Question.  Did  any  one,  and  if  so  who,  request  the  voters  to  call  for  the  Presi- 
dential ticket  only  ? — Answer.  I  stated  it  myself,  and  several  others  did  the  same 
thing. 

16th.  Question.  Did  Mr.  Belvin  say  anything  to  you  all,  and  if  so  what? — Answer. 
Ho  didn't  say  anything  to  me,  but  appealed  to  the  judge.  He  told  the  judge  it  was 
not  right  for  any  one  to  tell  the  voter  how  he  should  vote. 

17th.  Question.  Were  many  persons  challenged  on  the  day  of  election  by  Mr.  Bel- 
vin and  Mr.  Smith  ? — Answer.  Yes,  sir. 


214  WADDILL    VS.    WISE. 

18th.  Question.  What  time  did  yon  reach  the  polls  T — Answer.  I  was  there  l>efore 
the  polls  opened. 

Answer  to  14th  and  IHth  questions,  p.  60 :  Belvin  objected  to  this  advice  to  voters. 

Answer  to  27th  question :  Belvin  continually  occupying  the  window,  though  often 
told  to  get  away. 

'29th.  Question.  Did  you  observe  him  at  all  during  the  day  looking  in  the  alpha- 
betical list  for  names,  and  observe  where  he  seemed  to  be  looking  ? — Answer.  Some 
one  stopped  Mr.  Belvin ;  he  was  looking  iu  one  letter  for  a  name  in  another  letter. 
Suppose  the  name  began  with  W,  he  would  look  in  the  letter — any  other  letter — 
except  the  one  he  should  look  in.  Our  challenger  would  tell  him  where  to  look  ;  he 
did  tell  him  where  to  look;  then  he  would  look  in  there  and  find  it.  Mr.  Belviu 
wouldn't  tell  or  allow  our  challenger  to  look  on  his  book.  Mr.  Belvin  would  kiniler 
turn  himself  to  the  wall. 

80th.  Question.  Was  there  much  time  consumed  in  this  and  other  ways  in  the 
voter  depositing  his  ballot  f — Answer.  Yes,  there  was  a  good  deal  of  time  cousumed, 
because  the  judge  wouldn't  vote  a  man  until  Mr.  Belvin  would  find  his  name.  There 
might  have  been  others,  but  I  can't  recall  any  just  now. 

Answer  to  question  3,  p.  61 :  Belvin  advised  witness  to  challenge  all  Democratic 
voters. 

Charles  Bobinson,  p.  63  to  66 : 

Answer  to  3d,  4th,  and  5th  questions,  and  34th  cross-question,  p.  66 :  Owned 
and  lived  for  five  years  in  house  from  which  he  tried  to  vote ;  was  discharged  from 
employment  because  he  went  to  vote,  but  was  not  allowed  to  vote  by  Belvin.  Di- 
rectory corroborated  his  statement.     See  the  following : 

3d.  Question.  Do  you  mean  you  have  owned  and  lived  in  that  house  for  five  years 
past  T — Answer.  Yes,  sir  ;  and  I  have  owned  the  place  longer  than  that. 

4th.  Question.  Were  you  at  your  precinct  on  the  election  held  there  on  the  6th  of 
November  last ;  and  if  so,  did  you  vote? — Answer.  Yes,  sir;  I  got  there  at  half  past 
six  in  the  morning  and  stayed  there  until  half-past  eleven  before  I  got  to  the  win<lo  w. 
I  did  not  vote. 

5th.  Question.  Tell  what  happened  when  you  got  to  the  window. — Answer.  When 
I  got  up  to  the  window  Mr.  Belvin  attacked  me  then,  and  said,  *'  Hold  on  ;  don't  vote 
him  yet,"  just  in  that  manner.  He  asked  me,  "  Chas.,  how  old  are  you?"  I  told 
him  I  was  going  on  32  years  old.  He  says,  "  Have  you  ever  been  up  before  court ; 
you  ever  been  convicted  of  the  penitentiary  ?"  I  said,  "No,  sir,''  and  he  said,  "  I've 
got  yon  down  here  disfranchised,"  and  I  says,  "Oh,  no,  sir.  Let  me  swear  my  name 
in  then."  He  says,  "  They  got  your  number  down  here  1248,  and  on  the  book  it  is 
1148.  Hold  on ;  don't  vote  him  yet;"  and  then  he  said,  "  Stand  aside."  I  went  home 
to  get  njy  number,  and  brought  it  back  to  show  it  to  him.  He  said,  "  Stand  aside  ;  I 
have  got  no  time  to  bother  with  any  number  now."  Then  I  pitched  off  down  the 
dejiot,  and  I  said  now  I  know  I  am  going  to  be  discharged  to-day. 

25th.  Cross-question.  When  you  returned  to  the  pels  with  the  number  did  you 
take  your  place  again  in  the  rear  of  the  line  of  voters  ? — Answer.  No,  sir ;  I  went  right 
up  to  Mr.  Belvin,  and  he  turned  and  said  to  me,  "  Go  away  from  here  ;  I've  got  no 
time  to  bother  with  you."    He  spoke  to  me  like  he  was  speaking  to  a  hog. 

34th.  Cross-question.  Did  you  come  Ji}ack  any  more  that  day? — Answer.  Yes,  sir; 
after  Mr.  James  discharged  me  I  said  to  myself,  "All  right,  I  will  go  back  and  take 
the  balance  of  the  day  at  it." 

James  Childress — page  67 : 

7th.  Question.  State  now,  as  near  as  you  can,  what  was  done  by  Mr.  Belvin  and 
other  challengers,  who  were  present  during  the  day  representing  the  Democratic 
party,  to  delay  and  hinder  the  voting. — Answer.  Mr.  Belvin  was  there  with  a  book 
in  his  hand,  and  every  voter  came  up  he  would  delay  him  from  voting  until  he  looked 
over  that  book,  and  would  question  them  all  sorts  of  questions.  He  would  ask  old 
gray-headed  men  how  old  are  you,  where  you  live,  have  you  ever  been  niarriisd,  and 
would  continue  to  ask  different  questions  until  a  person  had  stood  there  five  or  six 
minutes,  and  then  he  would  smile  and  then  allow  him  to  be  voted.  This  is  in  the 
early  part  of  the  day.  Then,  in  another  instance  later  in  the  day,  Mr.  Smith  was 
there  as  challenger — H.  M.  Smith,  jr.,  I  think.  They  made  it  a  business,  it  seemed, 
to  challenge  each  one.  Mr.  Smith  would  challenge  one  and  then  Mr.  Belvin.  This 
applies  generally,  as  far  as  I  could  see,  while  I  was  at  the  polls.  One  instance,  a  man 
came  there  and  didn't  have  his  number  right,  and  they  refused  to  vote  him,  and  he 
went  away  and  got  his  right  number  and  came  back,  and  Mr.  Belvin  positively  re- 
fused to  vote  him,  objecting,  and  the  judge  refused  to  vote  him.  I  think  that  man 
was  named  Geo.  Mimms.  Belvin  challenged  him  and  would  not  allow  him  to  vote, 
and  I  and  a  good  many  others  in  the  crowd  hollowed  out  vote  him  on  his  oath.  They 
refused  to  vote  him  on  his  oath.  I  saw  Mr.  Smith  challenge  a  man,  I  don't  know  his 
name,  and  the  man  demanded  grounds  on  which  he  challenged  him,  and  he  refused 


WADDILL    VS.    WISE.  215 

to  give  grounds  and  offered  to  read  the  law  on  the  snhject,  all  of  which,  in  my  judg- 
ment, he  was  trying  to  kill  time.  I  also  saw  good  many  white  men  walk  up  to  the 
voting  place,  and  while  doing  so  several  of  them  would  ask  they  have  the  law  on  the 
constitutional  question  read,  and  the  challenger,  Mr.  Bclviii,  in  the  morning  had  a 
long  talk  with  the  judge  of  election  as  to  the  right  to  have  the  law  read. 

Answer  to  12th  question,  p.  68.  Not  a  single  illegal  voter  found  amid  all  the  chal- 
lengers. 

W.  H.  L.  TiLMAN— pages  76-7 : 

4th.  Question.  State  all  you  saw  there  in  the  conduct  of  election  hy  the  officers  of 
election,  and  the  length  of  time  required  to  poll  a  Aote? — Answer.  I  was  at  the  polls 
the  6th  Novemher  at  2  o'clock  in  the  morning.  When  I  fell  in  line  there  were  thirty- 
three  men  ahead  of  me ;  when  I  voted  it  was  a  quarter  f  o  ten.  I  just  could  discern  I 
was  moving  in  the  line  the  space  of  every  ten  minutes.  A  man  voted  before  me  by  the 
name  of  Leigh  Jinkins;  his  v^ote  was  challenged  by  Mr.  Preston  Bolvin  ;  he  said  he 
lived  over  the  Branch,  and  said  he  was  charged  with  petty  larceny,  and  that  he  was 
disfranchised,  and  Jinkins  said  he  had  never  been  disfranchised,  and  to  sw«ar  him  on 
his  oath  and  he  would  stand  the  consequence  ;  after  he  voted  he  wasn't  arrested.  A 
man  by  the  name  of  George  Dawson,  in  lino  in  fxout  of  me;  he  got  out  of  line;  he 
didn't  vote  that  day  till  night,  at  Moore  street;  he  was  in  line  ngain,  but  the  polls 
closed  on  him.  My  vote  wasn't  challenged.  Another  man  by  the  name  of  A.  6cott; 
his  name  appeared  on  the  register  M.  Scott;  he  couldn't  vote;  he  was  fluug  out  be- 
cause his  name  didn't  cori'oborate  with  that  on  the  registration -book;  the  number 
was  the  same. 

Answer  to  10th  question.  Cottrell  held  his  ballot  for  Belvin  to  search  his  list  and 
only  voted  him  when  B.  could  not  find  his  name. 

Jacob  Mallory: 

5th.  Question.  Please  state  what  occurred  at  the  polls  while  you  were  there  in  con- 
nection with  the  election. — Answer.  The  first  thing  I  heard  Mr.  Belvin  asked  the 
voters  unnecessary  questions.  He  asked  one  old  gentleman  how  old  he  was,  and  I  replied 
to  the  old  gettleman  to  tell  him  that  he  was  old  enough  for  to  vote.  I  think  his  name 
was  Mat.  He  asked  him  if  he  was  born  in  Richmond,  and  he  said  he  was  not,  but 
was  born  in  the  State;  and  they  asked  him  was  Richmond  in  the  State  of  Virginia, 
and  I  replied  to  him  that  they  had  no  right  to  ask  him  that,  and  that  he  shouldn't 
answer  no  such  question.  I  think  you  will  find  his  other  name  on  the  hook.  Then 
he  also  begin  to  ask  questions  what  they  were  voting  for,  whether  for  President  or 
constitutional,  and  good  many  of  the  voters  didn't  understand  it,  and  we  went  down 
the  line  to  instruct  the  voters  to  say  for  President  only.  Then  he  instructed  all  the 
white  voters  to  ask  the  constitutional  law  to  be  read  to  them.  Then  my  reply  was 
to  Mr.  Belvin  why  don't  you  let  them  read  it  yourself,  and  he  replied  that  none  of 
these  could  read,  and  he  requested  the  judge,  Cottrell,  Dem.,  to  read  it  to  them,  and 
he  would  do  so.  Just  about  ten  or  half  past  ten  o'clock  we  appeafed  to  the  police 
officers,  Cai)t.  Epps  and  others,  to  keep  the  crowd  back  from  the  voting  window.  He 
replied  that  he  didn't  have  anything  to  do  with  it;  and  these  officers — I  mean  the 
marshals  —I  asked  them  if  they  couldn't  get  the  crowd  back.  They  said  they  were 
doing  all  they  could,  but  they  were  doing  nothing  but  standing  there.  The  way  the 
window  was  blocked  by  these  challengers— ^there  was  about  a  dozen  of  them,  all  Dem- 
ocrats— the  window  was  about  two  feet,  I  suppose,  and  Mr.  Belvin  would  occupy 
exactly  half  of  the  window.  He  was  standing  with  his  book  open  laying  in  the 
window,  and  after  the  person  would  vote  it  would  take  at  least  two  or  three  min- 
utes for  the  voter  to  get  away  after  casting  his  ballot,  until  Mr.  Allan  and  Mr.  Wad- 
dill  came  up,  and  they  put  a  pole — Mr.  Waddill  did — for  to  keep  the  crowd  back ;  but 
the  police  officer  said  he  was  obstructing  the  sidewalk  and  made  him  remove  it.  The 
voting  was  getting  on  pretty  fast  while  thcpole  was  there.  It  staid  there  only  about 
five  minutes,  and  about  five  persons,  colored,  voted  in  that  time.  Towards  the  even- 
ing the  voter  would  come  up,  his  name  or  number  would  be  wrong  on  the  book,  and 
Mr.  Belvin  would  assist  on  his  staying  there  and  request  to  vote  after  knowing  that 
he  wouldn't  vote.  After  knowing  that  he  couldn't  vote  Mr.  Belvin  insisted  on  his 
staying  there  and  still  ask  to  vote.  He  would  tell  him  that  he  had  as  much  right  to 
vote  as  anybody  else. 

19th.  Question.  Would  or  not  a  great  many  more  votes  have  heen  cast  if  the  pole 
put  up  by  Mr.  Waddill  had  been  permitted  to  remain  by  th^  police  ? — Answer.  Yes, 
sir. 

20th.  Question.  Did  it  not  greatly  facilitate  the  voting,  without  injury  or  inconve- 
nience to  the  public  generally  ? — Answer.  It  was  helping  the  vote  on  ;  it  didn't  in- 
terfere with  the  public  at  all. 

2l8t.  Question.  Did  this  judge  of  election,  Cottrell,  permit  the  challengers  to  oh- 
struct  the  vote  as  you  have  stated  without  objection  on  their  part,  or  did  f  hey  do 
anything  to  stop  it  ? — Answer.  Didn't  do  anything  at  all  to  stop  it;  the  judge  would 
do  everything  the  challenger  requested. 


21G  WADDILL    VS.    WISE. 

George  O.  Carter— p.  245 : 

4th.  Questiou.  State  whether  yon  attended  your  voting  precinct  at  the  election 
held  on  the  6th  day  of  November,  1888  ;  how  Jontif  you  remained  tliere  in  line  to  vote, 
and  whether  or  not  you  8ucc»^eded  in  voting.— Answer.  Yes,  sir;  Idid  attend.  I  re- 
mained there  from  about  6.30  a.  m.,  and  only  one  or  two  voted  after  I  voted  till 
the  close  of  the  polls.  I  did  not  leave  the  ranks  during  the  day.  I  eat  my  break- 
fast and  dinner  in  the  line. 

6th.  Question.  What  questions  were  asked  yon  when  you  were  about  to  vote,  and 
by  whom  were  they  asked? — Answer.  I  was  asked  if  I  had  ever  been  in  jail.  I  was 
challenged  by  a  person  who  said  he  was  a  challenger. 

7th.  Question.  Were  you  asked  any  other  questions?  And  state,  if  you  know,  the 
name  of  any  person  who  qutstioned  you.  -Answer.  I  was  asked  if  1  was  unfran- 
chised ;  if  I  had  ever  been  in  the  penitentiary.  I  was  asked  where  I  was  born  at ;  if 
I  had  ever  been  out  of  the  United  States;  how  long  I  had  been  in  Eichmond,  where 
I  came  from,  when  I  came  to  Richmond,  and  then  asked  me  where  I  lived,  and  then  how 
long  I  had  been  living  there;  where  I  moved  from  when  1  came  there  to  live.  He 
desired  to  know  if  I  had  ever  voted  before.  They  told  me  that  it  was  a  Mr.  Beverly 
or  Mr.  Belvin. 

8th.  QneBtion.  You  say  you  arrived  at  the  polls  at  half  past  6  o'clock  a.  m.,  and 
did  not  vote  until  just  before  the  close  of  the  polls.  Did  you  in  all  that  tin)e  break 
your  place  in  the  line  or  allow  any  one  to  go  up  ahead  of  you  f — Answer.  No,  sir ;  I 
did  not. 

9th.  Question.  When  you  were  about  to  vote  was  there  any  pushing  or  shoving ; 
and,  if  so,  what  was  the  cause  of  it? — Answer.  Yes,  sir;  a  plenty  of  it.  There  were 
about  twenty-tive  or  thirty  white  people  pushing  to  keep  the  colored  people  from 
getting  to  the  window. 

H.  M.  S.MITU— p.  1152-61  :— Contestee's  witnesses. 

25th.  Question.  It  has  also  been  testified  that  you  and  Mr.  Belvin  not  only 
asked  the  unnecessary  questions  I  have  alluded  to,  but  you  were  heard  to  instruct 
Mr.  Belvin  to  ask  the  voters  whether  they  were  sick;  state  whether  you  did  so,  and, 
if  so,  why  ? — Answer.  That  was  in  consequence  of  an  astute  political  job  put  up  on  us 
by  Capt.  Ben  Scott,  a  Republican.  About  the  middle  of  the  day  Capt.  Scott  came 
to  me  and  said  that  there  was  a  poor  old  sick  man  back  there  in  the  line,  who  could 
hardly  stand  up,  and  asked  me,  as  an  act  of  mercy,  that  he  might  come  up  out  of  his 
turn  and  vote  on  the  white  man's  side  of  the  window.  I  readily  and  cheerfully  agreed 
to  it  and  the  man  was  voted ;  from  the  success  of  this  effort,  I  presume,  the  amount 
of  sickness  in  the  crowd  became  appalling,  so  much  so  that  after  four  or  five  of  them 
had  voted  out  of  their  turn  on  our  side  of  the  window,  with  our  consent,  I  dropped 
back  into  the  crowd  to  reconnoiter,  and  I  heard  a  colored  man  say,  in  reference  to  a 
sick  man  who  was  going  up  to  vote,  "  that  man  ain't  no  sicker  than  I  is,"  which  con- 
firmed my  own*  suspicions  that  we  were  being  taken  advantage  of,  and  I  called  to 
Belvin  to  ask  him  if  he  was  sick,  and  after  that  the  sick  men  disappeared. 

43d.  Cross-question.  Did  you  not  sympathize  with  and  encourage  pretty 
much  everything  you  saw  done  at  the  polls  on  that  day  which  in  your  judgment 
tended  to  lessen  the  Republican  vote  at  that  precinct? — Answer.  I  went  our  there  to 
assist  in  preventing  any  illegal  votes  from  being  cast.  I  tried  to  do  my  duty,  and 
did  not  study  the  consequences.  I  would  not  have  cared,  to  be  frank,  how  small  the 
Republican  majority  was,  but  my  sole  end,  aim,  and  object  was  to  prevent  illegal 
votes  from  being  cast. 

5l8t,  Cross-question.  I  heard  some  Democrats  urged  to  vote  on  constitutional 
question. 

Ja8.  E.  Merriweathkr — ^p.  133 : 

5th  question.  Window  crowded  with  25  or  50  challengers  and  policemen. 

6th  and  7th  questions.  Old  men  of  60  questioned  as  to  age,  etc.,  and  nearly  all 
challenged. 

W.  H.  MXTLLEX— p.  136  and  exhibit  p.  1625 : 

4th.  Question.  Look  at  the  paper,  please,  yon  have  filed  with  your  last  answer,  and 
give  us  the  names  of  the  voters  by  precinct,  and  state  the  length  of  time  it  look  to 
vote  them  and  whether  they  are  white  or  colored. — Answer.  At  the  2d  precinct  Brax- 
ton Hill,  colored,  voted  in  three  minutes ;  at  the  same  precinct  Montrose  Angle,  white, 
voted  in  half  a  minute  ;  at  the  same  precinct  Edward  Jordan,  colored,  three  minutes  ; 
William  James,  colored,  three  minutes.  At  the  third  precinct  William  Hopes,  colored, 
voted  in  three  minutes  ;  Henry  O'Neal,  white,  voted  in  half  a  minute  ;  R.  H.  Baylor, 
colored,  voted  in  three  and  a  half  minutes.  The  grounds  stated  for  questioning  this 
voter,  the  challenger  said,  was  that  a  real  estate  agent  standing  behind  him  said  this 
voter  had  moved,  which  the  voter  denied.  At  the  third  p'eciuct  John  Johnson,  col'd, 
voted  in  three  minutes;  Daniel  Henderson,  colored,  was  questioned  for  lour  minutes; 
Robert  Brown,  colored,  voted  in  two  minutes  ;  Benjamin  Jackson,  colored,  voted  in 
three  minutes. 


WADDILL    VS.    WISE.  217 

John  W.  Graves — p.  138. 

3d.  Question.  State,  please,  anylhing  that  happened  at  the  precinct  when  you 
were  there  lo  vote,  as  to  the  polling  of  the  vote  and  other  circumstiinces  ;  and,  if  so, 
what  did  happen  ?  Answer.  Well,  it  was  between  one  and  two  o'clock  when  I  voted. 
I  was  in  line  with  my  ballot  in  my  hand;  some  gentleman,  I  don't  who  lie  was,  sta- 
tioned jnst  behind  the  challenger,  and  acting  in  the  capacity  of  .assistant,  leaned 
over  and  whispered  to  me,  "Delay  thein  all  you  can."  I  turned  to  him  and 
asked  him  what  he  said,  when  he  repeatad  the  remark  and  added,  "  When  the  judge 
questions  you  in  regard  to  the  constitutional  amendments,  ask  him  what  it  means 
and  what  it  is  for  and  all  about  it."  I  paid  no  attention  to  him,  however,  but  voted. 
After  I  had  voted  I  remained  long  enough,  possibly  four  or  five  minutes,  to  see  the 
next  man  vote.  It  happened  to  be  a  bright  mulatto,  apparently  about  35  years  of 
age.  When  his  name  was  called  the  challenger  promptly  challenged  him,  and  com- 
menced to  question  him.  One  ofv  the  first  questions  asked  of  him  was  his  age;  he 
also  asked  him  how  long  he  had  been  a  registered  voter,  and  other  questions  as  re- 
gards his  right  to  vote.  Finally  some  one  inside  of  the  precinct  said,  "  Why,  that 
man  has  been  voting  here  for  ten  years."  The  judges  then  spoke  and  said,  "  He  is 
all  right."  The  man  was  questioned  no  further,  but  allowed  to  vote.  It  look  pos- 
sibly three  minutes  to  vote  him.  I  then  left  the  door  or  +he  window  of  the  precinct, 
and,  after  glancing  at  a  long  line  of  voters,  returned  to  my  work. 

7th  question.  You  have  spoken  of  what  this  assistant  challenger,  as  you  term  him, 
said  to  you.  Did  the  challenger  himself  state  or  do  anything;  and,  if  so,  what? — 
Answer.  The  only  thing  that  the  challenger  said  that  I  can  remember  was  when  my 
name  was  called  the  gentleman  whom  I  have  spoken^  of  as  assistant  challenger  mis- 
took my  name  for  Gray,  and  said,  "What  is  that.  Gray?"  I  turned  and  said,  "No, 
Graves."  The  challenger  then  cautioned  him  to  remain  quiet  or  rather  said  to  him, 
"Hush,  he  is  all  right,"  or  words  to  that  effect. 

8th  question.  How  many  persons  were  there  in  the  white  line  when  you  voted  ? — 
Answer.  I  don't  think  there  was  but  one  besides  myself  in  the  line. 

9th  question.  Was  there  more  than  one  line  at  this  precinct — I  mean  was  there  a 
white  and  a  colored  line  ? — Answer.  Yes,  sir. 

10th  question.  How  did  they  vote  from  these  lines? — Answer.  One  white  and  one 
colored,  alternately. 

Jackson  Akers,  or  Acres— p.  173: 

6th  question.  What  was'the  conduct  of  the  judges  of  election  and  challengers  for 
the  Democratic  party  in  connection  with  the  receiving  of  the  ballots  during  the  day? 
— Answer.  Well,  the  conduct  of  the  challengers,  I  think,  was  very  bad.  Mr.  Guigon 
challenged  nearly  every  other  vote  whilst  he  was  there.  A  good  deal  of  time  was  lost 
by  the  judge  asking  and  explaining  questions  on  the  amendment  to  the  constitution. 

7th  question.  How  did  the  judges  delay  the  election  in  reference  to  the  constitu- 
tional amendments? — Answer.  That  was  done  generally  by  white  men  coming  to 
vote.  It  delayed  it  this  way:  When  a  white  man  would  come  to  vote,  then  the  judge 
would  delay  time  by  telling  him  which  line  to  strike  out  if  he  was  opposed  to  the 
amendment  or  which  to  strike  out  if  he  was  in  favor  of  it. 

8th  questjion.  What  did  the  challengers  do,  and  who  were  they,  at  any  time  during 
the  day? — Answer.  The  challengers  had  the  disfranchisement  list.  They  challenged 
very  near  every  other  man  who  came  to  vote.  The  voter  was  charged  with  being  dis- 
franchised. Good  many  of  them  was  put  on  their  oath  and  voted,  but  some  they 
didn't  let  vote  at  all.  They  took  ten  to  fifteen  minutes  on  most  of  them.  I  don't 
know  but  one,  that  is  Mr.  Guigon. 

Jno.  H.  Campbell — p.  178 : 

2nd.  Question.  Mr.  Meredith  objected  to  Cunningham  acting  as  Eepubli can  chal- 
lenger; one  challenge  delayed  seven  or  eight  minutes;  challenged  about  six  out  of 
ten ;  took  pride  in  explaining  constitutional  vote ;  long  line  of  voters  late  in  the 
evening,  waiting  to  vote,  and  the  same  tactics  were  pursued,  Judge  Waddill  using 
all  his  efforts  to  get  in  the  vote  quietly  and  peacefully  j  "we  delayed  the  election 
about  ten  minutes,  and  that  was  better  than  his  vote." 

Benj.  Jackson — p.  185 : 

6th  question.  What  was  the  conduct  of  these  challengers  when  they  were  there? 
State  what  they  did  in  connection  with  the  voting. — Answer.  From  the  time  the  polls 
were  opened  until  they  closed  at  night  nearly  every  colored  voter  was  challenged. 
When  they  came  to  the  polls  to  vote  they  would  give  their  names,  and  if  their  name 
was  found  on  the  poll-book,  and  if  the  parties  holding  the  poll-book  would  say  it  was 
all  right,  the  challenger  would  say,  "Hold  on,  judge.  I  challenge  that  vote."  After 
looking  over  the  disfranchised  list  they  would  say,  "All  right;  go  on."  All  this  time 
the  judge  of  election  would  be  holding  the  ballot  in  his  hands,  and  he  never  deposited 
any  ballot  until  the  challengers  were  satisfied.    I  would  state  that  I  was  challenged 


218  WADDILL    VS.    WISE. 

myself  by  Mr.  Skelton  on  the  ground  that  I  gave  the  wrong  age.  I  voted  on  iny  oath, 
and  this  took  about  five  minutes'  time.  I  have  lived  in  the  precinct  about  fifteen 
years,  pay  taxes  on  about  three  thousand  dollars'  worth  of  proyterty.  Allen  Caisar's 
vote  was  also  challenged ;  they  say  his  name  could  not  be  found  on  the  poW-book,  and 
he  did  not  vote.  A.  P.  Quarls'  vote  was  also  challenged  on  acconut  of  his  not  giving 
the  right  age,  1  think  ;  he  did  not  vote  at  all.  There  was  another  niau  by  the  name 
of  Braxton;  lii«  vote  was  also  challenged  and  he  was  not  allowed  to  vote  on  account 
of  not  giving  the  right  number.  A  great  deal  of  time  was  also  taken  up  oulost  by 
the  police  forcing  the  lines  back,  and  before  we  could  get  the  men  regularly  in  line 
again  to  vote,  we  would  lose  probably  five  or  ten  minutes.  There  was  also  a  great 
deal  of  time  lost  in  explaining  to  each  colored  voter  as  he  came  up  to  vote  whether 
he  wanted  to  vote  for  or  against  the  convention.  The  judge  of  election  would  say  to 
each  voter,  "Every  twenty  years  we  have  to  vote  for  constitutional  convention;  this 
convention  is  to  make  any  amendments  to  the  constitution  of  the  State  of  Virginia. 
If  you  want  to  vote  for  the  convention  you  will  mark  out  this  bottom  line,  and  if  you 
don't  want  to  vote  for  it  you  will  mark  out  the  top  one."  This  question  was  put  to 
each  voter  as  they  come  by  the  judge  of  election.  I  think  this  is  about  all  that  I 
recollect. 

J.  E.  Farrar  (ex-councilman),  p.  193: 

(jth.  Question.  State  if  you  saw  anything  remarkable  abont  the  conducting  of  the 
election  on  that  day. — Answer.  Well,  on  my  first  visit  I  went  there  as  I  had  usually 
goue,  about  the  middle  of  the  day,  to  vote,  as  they  have  usually  gotten  through  with 
the  rush  of  voters  by  that  time,  and  usually  there  is  no  difficulty  in  a  man  voting 
after  that  hour  at  that  precinct.  I  noticed  when  I  arrived  there  that  there  were  an 
unusual  long  line  of  voters  waiting  to  vote.  Then  I  went  up  to  the  voting  window 
where  they  were  voting  and  found  a  number  of  gentlemen  which  I  had  not  usually 
seen  at  that  precinct,  and  Mr.  C.  V.  Meredith  was  arguing  a  point  of  law  and  insist- 
ing on  the  judge  to  give  his  decision  whether  a  voter  should  tell  what  was  his  age 
when  he  registered  or  his  exact  age  when  he  come  up  to  vote.  I  asked  him  what  was 
the  matter ;  why  were  they  voting  so  slow  ?  He  stated  that  he  only  wanted  to  know 
whether  the  persons  voting  there  were  legal  voters,  and  wanted  the  judge  to  decide 
the  question  whether  a  man  should  tell  his  age  when  he  registered  or  his  exact  age 
when  he  came  to  vote.  I  stated  to  him  then  that  I  wondered  if  he  or  the  judge 
either  entertained  any  doubt  in  regard  to  the  person  then  at  the  window  endeavor- 
ing to  vote,  as  any  one  could  see  from  his  appearance  that  he  was  then  over  50  years 
of  age — about  as  gray  as  I  am. 

7tb.  Question.  How  long  a  time  was  occupied  in  voting  one  man  while  you  were 
there  f — Answer.  I  think  about  eight  or  ten  minutes. 

8th.  Question.  Did  any  policeman  interfere  with  you  during  this  colloquy  with  Mr. 
Meredith  ? — Answer.  Wheu  I  approached  the  window  I  were  attacked  by  a  police- 
man ;  he  asked  me  was  I  challenger  there  that  day,  or  who  did  I  wish  to  see;  I 
stated  to  him  that  I  wished  to  vote,  and  to  know  why  the  voting  was  being  con- 
ducted so  slow ;  that  he  need  not  bother  about  me,  that  I  was  for  peace  and  business, 
and  then  passed  on.     He  said  nothing  more. 

9th.  Question.  About  how  many  colored  men  were  in  line  waiting  to  vote  when 
you  got  there? — Answer.  As  near  as  I  can  judge  I  reckon  about  125  or  150. 

lOui.  Question.  Had  there  ever  been  any  trouble  in  getting  in  the  whole  vote  at 
that  precinct  at  any  previous  election? — Answer.  Not  to  my  knowledge. 

13th.  Question.  You  say  that  you  have  been  voting  at  that  precinct  for  fifteen 
years,  and  that  you  own  three  thousand  dollars'  worth  of  property  in  that  precinct. 
Have  you  ever  had  any  trouble  in  voting  there  before,  and  has  there  ever  been  any 
difficulty  in  polling  the  fidl  vote  at  precinct  at  any  previous  election  ? — Answer.  No, 
sir  ;  I  never  had  any  trouble  in  voting  there  before.  We  have  never  had  any  trouble 
before  ;  we  generally  manage  to  poll  the  full  vote  by  4  o'clock. 

14th.  Question.  About  how  many  people  were  at  the  precinct  when  you  got  there 
in  the  morning,  and  were  they  in  line  ? — Answer.  Near  about  200,  and  they  were  all 
in  line. 

.George  A.  Cunningham— p.  189-90: 

After  remaining  at  the  Third  for  a  while  and  witnessing  the  slow  voting,  the  judge 
at  that  precinct  seemed  to  me  to  take  lots  of  time  and  great  interest  in  listening  to 
all  questions  raised  by  the  challengers.  When  they  raised  any  objection  he  wonld 
hold  the  ballot,  listen  to  all  of  them  before  depositing  it,  which  consumed  from 
three  to  ten  minutes  with  each  one.  He  took  great  interest  in  waflting  to  read  and 
reading  the  constitutional  act  which  was  raised  out  there.  I  saw  a  voter  being  re- 
fused to  vote  l>y  the  objection  of  one  of  the  challengers.  This  colored  man  came  to 
vote,  but  was  refused  on  the  ground  that  he  had  his  number  on  a  piece  of  paper, 
and  refused  to  give  it  verbally. 


WADDILL    VS.    WISE.  219 

A.  II.  Kaufman — (candidate  for  house  of  delegates) — p.  210  : 

Part  answer  to  sixth  qnestion.  I  drove  to  the  third  precinct,  and  got  there  just  as 
a  man  by  the  name  of  George  Jackson  was  about  to  cast  his  ballot.  1  found  consider- 
able delay  occasioned  by  one  of  the  judges  of  election  at  that  precinct  voluntarily 
explaining  to  the  voter  the  law  bearing  upon  the  vote  for  a  call  for  a  convention. 
He  explained  that  law  to  that  particular  voter  three  times  successively,  consuming 
suflScient  time  to  have  voted  three  or  four  voters  in  an  ordinary  manner.  I  was  right 
behind  the  voter,  and  knowing  him  personally  I  knew  he  was  fully  competent  to  cast 
his  vote  without  the  aforesaid  explanation.  I  could  not  help,  from  the  circumstances, 
to  become  aware  that  the  judge  of  election  had  au  understaudfing  with  the  chal- 
■  lengers  at  the  polls  in  making  this  explanation  so  repeatedly  for  the  purpose  of  delay 
and  consumption  of  time.  I  remarked  to  the  voter,  the  aforesaid  Mr.  Jackson,  that 
he  seemed  to  be  very  hard  of  uudersty^ndiug  to-day,  knowing  him  to  be  as  intelligent 
as  he  was.  He  finally  voted  and  went  away,  after  consuming  between  six  and  eight 
minutes  of  time.  The  next  voter  that  presented  himself,  a  colored  man,  was  chal- 
lenged by  two  or  three  challengers.  I  do  not  know  the'  merits  of  the  challenging, 
but  I  saw  conclusivsly  that  all  of  it  was  done  for  the  purpose  of  delay,  intimidation, 
and  consumption  of  time.  While  this  was  going  on  a  question  arose  between  the 
Republican  United  States  supervisor  and  some  of  the  challengers  as  to  their  respect- 
ive rights,  when  Colonel  Tazewell  Ellettcame  up  flourishing  a  paper  and  stated  in  a 
loud  voice  calculated  to  inspire  with  awe  any  timid  voter,  that  he  had  just  come  from 
the  oflSce  of  the  secretary  of  the  commonwealth  and  held  the  law  from  him;  that 
they  (the  Democratic  challengers)  could  have  the  United  States  supervisor  arrested. 
This  declaration  on  the  part  of  Colonel  Ellett  caused  considerable  excitement  at  the 
polls,  and  consumed  a  great  deal  of  time. 

Dan'l  Henderson — p.  221 : 

2nd  to  r?th  question.  Owns  twelve  houses,  six  of  them  in  Jackson  ward;  resided 
there  twelve  years;  identified  by  the  judges,  ^ut  challenge  insisted  on  and  he  had  to 
take  the  oath  before  voting, 

Charles  Frayser — p.  588 : 

10th.  Question.  Why  did  you  not  vote  your  ballot  at  the  regular  polls?  How  near 
to  the  ballot-box  did  you  get  to  the-  regular  polls,  and  why  were  you  not  allowed 
to  vote  there  ? — Answer.  I  was  challenged  there  for  some  cause  or  another,  1  don't 
know  what.  I  got  right  up  to  it,  and  handed  my  ballot  in,  and  when  they  called 
my  name  a  gentleman  challenged  my  vote,  and  then  they  asked  me  if  that  was  all  my 
name,  and  I  told  them  yes,  except  when  1  was  a  child  the  children  used  to  call  me 
Charles  Henry  Fraysier.  The  gentlemen  then  said  I  had  no  right  to  vote  as  my  name 
was  on  the  book  Cliarles  Fraysier  ;  and  then  the  polls  closed  before  I  got  away. 

11th.  Question.  What  length  of  time  passed  from  the  time  you  got  to  the  ballot- 
box  and  offered  your  ballot  to  vote  and  the  time  the  polls  closed?  Answer.  As  near 
as  I  can  come  at  it  jt  must  have  been  not  less  than  ten  minutes. 

Thomas  H.  Briggs  : 

29th.  Cross-question.  Please  state  some  of  the  questions  usually  asked  a  voter  by 
the  challengers. — Answer.  Asked  them  their  names ;  where  do  you  say  you  live ; 
what  is  your  number;  did  you  say  1714?  No,  sir ;  I  said  1417.  Ever  been  to  jail; 
wasn't  you  arrested  for  stealing  last  year;  what  did  you  say  your  name  was,  John 
Robertson;  how  you  spell  it?  Robtson.  Did  you  say  Robsou?  No,  sir.  Well, 
didn't  you  used  to  live  at  number  506  ?  No,  sir.  Well,  here's  another  man  the  same 
name,  I  think  that  must  be  you.  And  all  sorts  such  questions  as  that  they  would 
ask;  more  so  on  that  day  than  I  have  ever  known. 

I,  W.  Carter  (councilman) — p.  170 : 

3d,  Question.  State,  please,  anything  that  you  saw  or  that  happened  at  the  said 
precinct  on  the  said  day,  if  anything  did  happen,  by  which  the  vote  of  said  precinct 
was  not  polled, — Answer.  I  was  at  the  door,  and  the  voters  came  to  a  halt,  and  I 
happened  to  look  in  there  to  see  what  was  the  matter,  and  I  went  on  inside  and  I  saw 
Mr.  Kolbe,  I  think,  a  supervisor,  and  a  man  was  there  who  wanted  to  vote.  He 
asked  him  his  name,  and  he  told  him.  He  asked  him  his  age,  and  he  told  him. 
His  residence,  and  he  told  him  ;  and  then  he  asked  him  was  he  married,  he  answered 
yes ;  and  then  he  asked  did  he  have  any  children,  and  he  said  yes ;  then  he  asked 
him  how  many,  and  he  told  him  ;  then  he  asked  him  how  old  was  the  oldest,  ai;d  he 
told  him  ;  then  he  asked  him  how  old  was  the  youngest,  and  he  told  him,  At  this 
point  I  interfered  with  the  question  as  to  the  age  of  the  children.  Then  he  stopped 
then  and  had  some  words  with  me  about  it,  and  said  he  could  do  as  be  pleased  ;  that 
I  had  nothing  to  do  with  it.  Then  I  gave  up,  and  the  man  went  on  answering  his 
unnecessary  questions.  I  went  out  and  stood  at  the  door.  About  ten  minutes  was 
consumed  with  that  one  man.  This  man  was  the  one  they  had  the  most  trouble 
with.    This  was  a  weU  man,  but  sick  did  come  during  the  day,  and  I  asked  the 


220  WADDILL    VS.    WISE. 

policemau  to  admit  them,  as  was  the  custom,  and  the  policeman  said  he  would  iito 
admit  thera  unless  somebody  would  give  way  iu  the  rauks.  So  I  said  to  him,  you 
had  as  well  try  to  move  a  brick  house  as  to  try  to  move  a  mau  out  of  rauks,  aud  he 
said,  well,  if  he  was  sick  let  him  go  home  and  go  to  bed ;  that  that  was  the  best 
place  for  him.  All  these  things  would  delay  the  voting  for  about  ten  minutes  for  one 
man  to  vote.     That  is  about  all. 

Question  15.  Gentry  would  look  through  all  the  J's  before  allowing  a  man  named 
John  to  vote,  and  would  pay  no  attention  to  voter's  finding  his  own  name. 

Jacob  Ckoss— p.  181: 

Question  6,  p.  182.  Gentry  would  find  name  John  Smith,  a  voter,  with  right  num- 
bei-,  age,  and  all,  but  would  not  allow  him  to  vote  until  he  had  looked  entirely  through 
the  list  of  Smiths.  »  »  *  One  Morracco  Smith  also  ofi'ered  to  vote  ;  I  found  name 
and  informed  Gentry  of  it ;  he  said  itwasnoneof  my  business,  stand  back,  and  would 
not  allow  him  to  vote  until  he  had  looked  entirely  through  the  S's.  *  •  *  Gentry 
had  to  have  his  attention  called  two  or  three  times  to  voters  offering  to  veto,  before  you 
could  make  him  hear.  He  was  leaning  on  the  book,  which  was  open  a  part  of  the  time, 
and  then  in  conversation  with  the  other  challengers  during  the  day. 

Question  7.  Kolbe  was  the  Democratic  supervisor.  Asked  man  how  long  he  had 
been  married,  how  many  children  he  had,  etc.  Thinks  Kolbe  was  under  the  influ- 
ence of  liquor. 

FRiNcis  E.  Burke— p.  183 : 

Questions  3  and  5.  Was  ticket-holder  for  Eepublicans.  *  •  *  Voted  more  votes 
in  the  morning. 

Question  9.  Would  have  polled  the  vote  if  white  and  colored  had  been  treated 
alike. 

10th.  Cross-question.  Was  that  practice  kept  up  until  all  the  white  men  had 
voted? — Answer.  Yes,  sir. 

11th.  Cross-question.  After  the  polls  closed  was  there  any  general  proclamation 
made  by  the  United  States  commissioner,  or  any  one  else,  so  that  all  voters  could 
hear,  that  all  parties  who  had  not  voted  would  be  allowed  to  do  so  before  him  at 
some  particular  place  named  within  the  limits  of  the  precinct? — Answer.  Yes,  sir;  I 
heard  Judge  Waddill  tell  them  all  to  stay  in  line;  that  were  all  going  to  be  voted  by 
the  United  States  commissioner. 

r2th.  Cross-question.  Who  did  Judge  Waddill  tell  this  to? — Answer.  He  was  not 
telling  it  to  anybody  particular,  but  telling  them  all  along  the  line.  He  told  me  to 
help  to  keep  them  in  line;  that  he  had  a  United  States  commissioner  there  and  he 
was  going  to  vote  every  one  of  them. 

Governor  James  H.  Harvey  (ex-member  legislature  of  Kansas,  State  senator,  ex- 
United  States  Senator,  and  ex-governor  of  that  State),  p.  195: 

Question  4,  p.  195.  Men  in  line  had  tickets  in  hand  and  complained  about  not  being 
able  to  vote.  The  voting  seemed  to  me  to  be  exceedingly  slowr  »  »  *  Could  not 
get  in  the  voting-room,  but  looked  through  window,  and  it  seemed  as  if  there  were 
a  great  many  questions  being  asked,  and  the  man  that  I  saw  vote  had  to  stand  in  front 
of  the  ballot-box  a  long  time  before  he  was  permitted  to  vote.  I  saw  a  number  of 
deputy  United  States  marshals  in  the  neighborhood  of  the  polls  an<l  some  policemen. 

10th.  Question.  I  heard  at  the  polls  a  great  many  say  the  voting  was  purposely  de- 
layed in  order  to  hinder  the  colored  voters  from  casting  their  ballots. 

26th.  Cross-question.  Were  the  men  whom  you  heard  say  the  voting  was  purposely 
delayed  in  order  to  hinder  the  colored  voters  from  casting  their  ballots  white  men  or 
colored  men.  Republicans  or  Democrats? — Answer.  Some  white  men  and  some  colored 
men.  Some  of  them  were  Republicans,  and  some,  I  think,  were  Democrats,  because 
they  attempted  to  justify  it. 

James  A.  Duffy  (was  Republican  challenger) — p.  204: 

7th.  Question.  Why  were  they  voted  slower  in  the  afternoon  or  evening  ? — Answer. 
Well,  by  little  after  11  o'clock  Mr.  Randolph  came  down  there  and  had  a  consultation 
with  the  Democratic  judge)  Gentry,  and  then  Mr.  Purcell;  he  came  down  there  with 
a  book,  he  said,  with  proper  oath  in  it  to  administer  to  the  voters  who  were  sworn. 
He  gave  it  to  the  judge  and  told  him  that  that  was  the  proper  oath  to  administer  to 
a  party  wh"  had  been  sworn.  The  Democratic  supervisor  he  came  around  and  asked 
the  voters  the  same  questions  the  challengers  had  just  asked.  First  one  and  then 
another  of  the  challengers  would  question  a  man  about  his  ^'^ge,  residence,  and  last 
Xdace  he  voted,  if  he  had  ever  been  convicted  of  petit  larceny,  if  he  had  ever  been  in 
jail,  how  long  he  had  been  in  the  city,  didn't  he  vote  in  the  county,  didn't  he  move 
from  the  county  to  the  city.  After  the  challengers  got  through  with  a  man  the 
supervisor  then  would  go  over  the  same  qucstio .is.  They  had  two  men  arrested  in  the 
eveningonaccountofnumbersof  their  residence  being  wrongon  the  registration-books. 
These  men  were  delayed  some  time  at  the  box,  and  were  then  sent  to  get  their  right 


WADDILL    VS.    WISE.  221 

number;  then  after  they  come  back  they  was  challenged,  again.    Tliey  were  sworn 
then  and  voted.     Then  the  Democratic  supervisor  ordered  their  arrest. 

11th.  Question.  Which  judge  of  election  had  charge  of  the  colored  book,  aud  what 
was  his  conduct? — Answer.  Mr.  William  Gentry.  When  a  man  came  in  and  gave  his 
name,  he  would  find  his  name  on  the  book,  and  then  would  look  all  over  the  book  to 
see  if  he  could  find  another  name  similar  to  the  man  that  was  standing  there  before 
he  would  vote  him.  He  would  close  the  book  after  a  voter  had  voted,  and  when  the 
next  voter  would  come  in  he  would  have  to  open  the  book  and  look  for  the  place 
again.  When  I  would  tell  him  the  number  where  he  would  find  the  man's  name,  he 
would  tell  me  that  he  was  attending  to  that  book,  and  to  attend  to  my  own  business. 
Several  times  while  the  book  was  closed  his  attention  would  have  to  be  called  to  a 
voter  standing  waiting  to  vote. 

A.  H.  Kaufman — p.  210 : 

Question  6.  I  then  drove  down  to  the  Fourth  precinct  in  Jackson  Ward,  and  when 
I  arrived  there  I  saw  a  large  string  of  voters,  all  colored,  on  the  sidewalk  approaching 
the  polling-place.  In  front  of  the  line  at  the  door  of  the  said  polling-place  was  a  tall 
policeman  with  his  club  stretched  perpendicular  across  the  man's  breast  who  was  in 
front  of  the  line,  not  allowing  him  or  any  one  in  the  line  to  move  either  one  way  or 
the  other  towards  the  polling-place,  keeping  the  voter  entirely  ignorant  as  to  when 
his  next  turn  would  come,  which  in  itself  was  calculated  to  make  impatient  voters 
leave  their  position  in  line.  I  saw  no  line  of  white  men,  «nd  hence  realize  no  good 
reason  why  these  colored  voters  should  be  held  back  in  that  manner.  I  went  into  the 
room  where  the  voting  was  done,  and  just  as  I  came  in  a  colored  man  who  it  seems 
had  been  sent  out  with  a  policeman  to  verify  the  number  of  his  residence  about  which 
there  had  been  some  controversy  between  the  voter  and  the  Democratic  United  States 
supervisor,  the  question  involved  being  the  difference  of  a  number  or  two  from  that 
which  was  on  the  registration-books.  After  informing  myself  of  the  above 
facts  I  requested  the  judge  of  election  to  swear  the  voter,  which  would  entitle  him 
to  vote.  He  did  so,  and  the  man  was  voted,  after  which  the  Democratic  United  States 
supervisor  cabled  in  a  marshal  and  ordered  the  arrest  of  that  voter,  who  was  carried 
off"  to  jail.  I  asked  the  supervisor,  who  at  that  time  was  standing  upon  a  box  behind 
one  of  the  judges  of  the  election,  who  had  charge  of  the  ballot-box  and  seemed  to  take 
entire  control  of  the  polling-place,  why  he  had  that  man  arrested.  He  answered  me, 
he  knew  his  business.  I  reiterated  that  he  was  drunk,  and  ought  to  have  been  ar- 
rested himself.  Mr.  James  C.  Smith,  who  was  present,  told  me  then  that  he  had  been 
acting  that  way  the  whole  evening,  and  that  he  ought  to  have  a  warrant  sworn  out 
against  him.  I  reiterated  that  I  was  going  to  swear  out  a  warrant  (or  the  Democratic 
supervisor,  whereupon  the  said  Democratic  supervisor  said  to  me,  "Go  and  have  me 
arrested;  my  name  is  Henry  Kolbe."  The  entire  deportment  of  the  afoi;esaid  super- 
visor was  dictatorial  and  calculated  to  impress  with  fear  any  timid  voter  that  would 
present  himself.  The  scene  above  described  in  itself  caused  a  long  delay  in  consuming 
a  great  deal  of  time.  I  was  very  much  incensed  at  the  deportment  and  actions  of  the 
Democratic  challengers  and  supervisors  in  taking  the  advantage  of  having  a  large 
majority  at  this  polling-place,  which  in  itself  was  calculated  to  hinder  aud  delay  the 
voting,  so  much  so  that  I  left  there  to  go  to  the  United  States  commissioner  and 
swear  out  a  warrant  against  the  said  Henry  Kolbe,  but  was  advised  not  to  do  so,  as 
such  a  course  would  have  necessitated  the  closing  of  that  precinct. 

James  C.  Smith  (ex  city  sergeant,  councilman,  etc.),  p.  236: 

Question  11.  They  would  ask  a  colored  man  if  he  wanted  to  vote  on  the  constitu- 
tional amendment.  After  the  colored  man  declined  to  vote  on  the  amendment  Mr. 
Finnerty  would  th^n  read  it  over  to  him  slow.  In  one  instance  a  man  came  in  by 
the  name  of  Harris,  about  50  years  old.  He  was  asked  if  he  was  21  by  challenger, 
Mr.  Grymes,  what  year  he  was  born  in,  where  his  mother  lived,  and  if  the  last  freshet 
had  washed  the  dung  off  his  house.  The  objection  was  made  to  this  man's  A'oting  on 
account  of  his  residence ;  the  judges  sent  some  men  with  him  to  see  if  he  lived  where 
he  said  he  lived.  They  came  back  and  reported  to  the  judges  that  it  was  all  right. 
There  was  some  question  then  about  his  voting,  and  this  supervisor,  Kolbe,  said  he 
be  damned  to  hell  if  he  should  vote,  and  said  he  would  sit  on  the  l)allot-box  first. 
I  remarked  to  Kolbe  that  he  was  drunk  and  not  fit  to  be  there.  He  said  it  w»s  none 
of  my  business,  called  in  a  policeman,  and  told  him  to  arrest  the  nigger  and  lock  him 
up.  I  told  him  it  was  a  shame;  that  a  drunken  loafer  like  him  ought  to  be  locked 
up  instead  of  the  nigger.  Then  he  took  out  his  bottle  and  took  another  drink.  He 
said,  "I  would  like  to  see  you  have  me  arrested."  When  a  colored  man  would  come  . 
in  I  would  get  his  name;  I  would  go  to  a  copy  of  the  registration-books  which  we 
had  there  in  the  room  ;  I  would  go  the  judge  and  point  out  the  same  number  that 
corresponded  with  the  man's  name  on  their  book.  The  judge,  Mr.  Gentry,  in  a 
friendly  manner,  said,  "  Mr.  Smith,  I  am  keeping  these  books,"  and  would  go  up  aud 
down  over  the  names  on  the  books.     I  made  the  remark  to  him,  what  was  the  use  iu 


222  WADDILL    VS.    WISE. 

going  all  over  the  names  when  I  had  just  pointed  ont  the  name  to  him.  He  remarked 
that  he  wanted  to  see  if  there  was  any  more  on  the  books,  and  to  see  if  the  man'8 
name  corresponded  with  his  residence  as  he  gave  it  in. 

John  J.  Keiley  (Republican  supervisor) — p.  148: 

Questions  3  and  4.  Reached  polls  before  sunrise,  and  there  seemed  between  two  and 
three  hundred  voters  in  line. 
Questiou  6,  p.  149.  This  line  was  kept  up  during  the  day. 

The  voters  were  divided  into  two  lines,  white  and  colored,  and  the 
great  majority  of  the  voters  were  colored. 

The  colored  voters  and  white  voters  took  equal  turns  in  voting.  The 
white  voters  resident  in  the  first  iJrecinct  were  132  and  colored  883  j 
third  precinct,  white  voters,  254,  colored,  797 ;  fourth  precinct,  white 
voters,  392,  colored, 692.  See  record,  1635.  By  voting  alternately  the 
white  voters  were  all  enabled  to  cast  their  votes,  leaving  the  excluded 
voters  at  the  rear  end  of  the  long  colored  line.  Ko  clearer  illustration 
of  the  situation  could  be  given  than  the  statement  made  by  coi  testee's 
witness,  H.  M.  Smith,  above  quoted,  that  some  of  the  colored  men, 
under  pretence  of  sickness,  got  into  the  white  line,  and  were  there 
permitted  to  vote,  whereupon  he  says  the  "  amount  of  sickness  in  the 
crowd  became  appalling."  But  this  ruse  of  the  colored  men  to  secure  an 
opportunity  to  vote  was  stopped  after  a  few  votes  were  thus  permitted. 
But  when  the  polls  closed  these  obstructive  tactics  had  been  successful 
in  preventing  the  casting  of  enough  Kepublican  votes  to  give  a  majority 
of  261  to  the  Democratic  contestee. 

It  has  been  held  in  New  York,  Alabama,  and  California  that  a  vote 
lawfully  tendered  and  not  received  should  not  be  counted,  but  if  the  re- 
sult was  changed  thereby  that  a  new  election  should  be  ordered.  (See 
State  vs.  Judge,  13  Ala.,  805 ;  Hartt  vs.  Harvey,  19  Howard's  Practice, 
K.  Y.,  245 ;  Webster  vs.  Byrnes,  34  Oal.,  273.) 

But  this  rule  we  think  is  not  founded  in  reason  and  is  against  the 
weight  ot  authority.  It  was  seemingly  though  not  directly  sanctioned 
in  the  Nineteenth  Congress  in  case  of  Biddle  vs.  Wing,  Clarke  and  Hall, 
504. 

The  Eevised  Statutes  of  the  United  States,  section  2007,  provides : 

That  whenever,  by  or  under  the  authority  of  the  constitution  or  laws  of  any  State 
or  the  laws  of  any  Territory,  any  act  is,  or  shall  be,  required  to  be  done  by  any  citi- 
zen as  a  prerequisite  to  qualify  or  entitle  him  to  vote,  the  ofter  of  any  such  citizen  to 
perform  the  act  required  to  be  done  as  aforesaid  shall,  if  it  fail  to  be  carried  into  ex- 
ecution by  reason  of  the  wrongful  act  or  omission  of  the  person  or  officer  charged 
with  the  duty  of  receiving  or  permitting  such  performance  or  olier  to  perform  or  act- 
ing thereon,  be  deemed  and  held  as  a  performance  in  law  of  such  act,  and  the  person 
so  offering  and  failing  as  aforesaid,  and  being  otherwise  qualified,  shall  be  entitled  to 
vote  in  the  same  manner  and  to  the  same  extent  as  if  he  had  performed  such  act. 

The  offer  to  perform  the  prerequisites  to  the  right  to  vote  is  by  this 
statute  made  equivalent  to  a  pertormance  of  the  act  itself,  where  the 
wrongful  act  or  omission  of  an  officer  prevents  carrying  such  offer  into 
execution. 

This  carries  the  doctrine  of  tender  back  one  step  further,  and  makes 
a  tender  of  registration  or  other  prerequisite  sufficient  to  entitle  the  citi- 
zen to  the  right  to  vote.  The  doctrine  that  such  votes  should  be  counted 
is  strengthened  by  this  statute. 

If  the  voter,  in  the  language  of  the  statute,  "  shall  be  entitled  to  vote," 
the  right  would  be  a  very  barren  one  if  the  vote  tendered  and  refused 
could  not  be  counted. 

So  far  as  Congressional  elections  are  concerned,  the  offer  by  a  voter  otherwise  legally 
qualified  to  perform  any  act  which  is  a  prerequisite  to  voting  will  be  in  law  a  per- 
tormance of  the  act.     (Paine  on  Elections,  p.  519.) 


WADDILL    VS.    WISE.  223 

This  House  has  uniformly,  since  the  Nineteenth  Congress,  recognized 
the  rule  that  a  legal  vote  lawfully  tendered  and  unlawfully  rejected  shall 
be  counted  and  given  the  same  force  and  ett'ect  as  it  actually  cast. 

Whatever  the  rule  may  be  in  any  of  the  States  oi  the  Union  this  prin- 
ciple is  well  settled  as  a  rule  of  Congress. 

The  present  Congress  has  recognized  and  followed  the  same  doctrine, 
and  the  majority  and  minority  reports  of  the  committees  in  Atkinson  vs. 
Pendleton  both  expressly  recognize  this  rule  of  law. 

See  also  the  cases  of  Smith  vs.  JackscMi,  Mudd  vs.  Compton,  and 
Featherstone  vs.  Cate,  Fifty-first  Congress. 

As  to  the  duty  of  Congress  to  count  all  votes  legally  offered  and  un- 
lawfully rejected,  see  Sessinghaus  vs.  Frost  (2  Ellsworth,  380) ;  Frost 
vs.  Metcalf  (1  Ellsworth,  289);  Bisbee  vs.  Fiuley  (2  Ellsworth,  172); 
Oovode  vs.  Foster  (2  Bartlett,  600,  Gil ) ;  Taylor  vs.  Eeading  (2  Bartlett, 
661) ;  Porterfield  vs.  McCoy  (Clarke  and  Hall,  207) ;  Buchanan  vs.  Man- 
ning (2  Ellsworth,  28'^) ;  Bell  vs.  Snyder  (Smith,  247.) 

The  same  rule  prevails  in  England  (Qeywood,  5  ed.,  500). 

It  is  now  an  established  rule  of  the  House  of  Representatives  of  the  United  States 
that  a  vote  duly  offered  and  unlawfully  rejected,  at  the  polls,  will  be  counted  in  a 
contest  (Paine  on  Elections,  Sec.  517.) 

When  a  legal  voter  offers  to  vote  for  a  particular  candidate  and  uses  due  diligence 
in  endeavoring  to  do  so,  and  is  prevented  by  fraud,  violence,  or  intimidation  from 
depositing  his  ballot,  his  vote  should  be  counted.  (Niblack  vs.  Walls,  42  Cong.,  104 ; 
Smith,  101.) 

In  Sessinghaus  v.  Frost  (2  Ellsworth,  380),  decided  in  1883,  votes 
offered  but  not  cast  were  counted  in  the  Forty-seventh  Congress. 
In  Yeatea  v.  Martin,  decided  in  1881,  the  same  rule  is  stated  : 

The  soundness  of  this  rule  is  indisputable  ;  otherwise  the  door  is  open  for  unmeas- 
ured frauds.  Suppose,  for  instance,  in  a  heated  election,  one  party  should  by  acci- 
dent be  prevented  from  polling  its  heavy  vote  until  late  in  the  afternoon,  how  easy 
would  it  be  for  a  partisan  board  of  managers  to  defeat  a  man  who  otherwise  would 
be  the  choice  of  the  people.  And,  again,  by  delaying  to  open  the  polls  at  the  time 
fixed  by  law  in  the  forenoon  of  election  day,  and  by  delaying  for  three  or  four  hours, 
and  systematically  challenging  the  voters,  and  consuming  as  much  time  as  possible 
with  each  voter,  it  would  be  easy  to  procrastinate,  so  the  hour  of  closing  the  polls 
should  arrive  and  a  large  vote  remain  unpolled.  (Ellsworth,  Digest  Election  Cases  45 
and  46  Congress,  pp.  386-7.  See,  also,  Bisbee  vs.  Finlay,  Digest  Election  Cases  47 
Congress,  pp.  173-174,  and  views  of  the  minority,  p.  227.) 

The  same  rale  was  laid  down  in  Frost  v.  Metcalf  in  1879,  and  the 
following  is  the  language  of  the  committee's  report : 

If  contestant  had  proved  that  any  man's  vote  was  rejected  by  reason  of  his  name 
not  being  on  the  poll-books,  whose  name  was  on  the  registration  lists,  and  that  his 
vote  was  offered  by  him  and  not  counted,  then  he  is  entitled  to  the  benefit  of  it. 
(P.  290.) 

In  Bradley  v.  Slemons,  decided  in  1880,  the  committee  say : 

We  concede  there  may  be  circumstances  under  which  a  legal  voter  being  deprived 
of  the  privilege  of  casting  his  ballot,  it  may  nevertheless  be  counted,  and  (quoting 
from  Judge  McCrary)  "  to  require  each  voter  belonging  to  a  class  of  excluded  voters 
to  go  through  the  form  of  presenting  his  ballot,  and  having  a  separate  ruling  in  each 
case,  would  be  an  idle  and  useless  formality."  (Digest  Election  Cases,  1876  to  1880, 
p.  312.) 

In  this  case,  however,  the  votes  claimed  were  not  counted,  because 
no  fraud,  intimidation,  or  other  misconduct  was  alleged  or  proven. 

Indeed  we  do  not  understand  that  any  of  the  committee  question  the 
rule  laid  down  in  this  report  that  a  lawful  vote  properly  tendered  and 
unlawfully  excluded  may  be  counted,  and  that  the  remedy  in  such  a 
case  is  not  to  set  aside  the  election. 

But  it  is  claimed  by  a  minority  of  the  committee  that  under  the  facts 


224  WADDILL    VS.    WISE. 

of  the  present  case  there  has  been  no  such  an  offer  to  vote  on  the  part 
of  the  several  hundred  voters  as  would  entitle  them  to  have  their  votes 
counted.  This  brings  us  to  the  discussion  of  what  constitutes  a  tender 
or  offer  to  vote. 

It  is  eminently  proper  in  approaching  the  polls  where  there  are  a 
large  nuniber  of  voters  that  the  voters  should  form  a  line  and  take 
their  orderly  turns  in  voting.  To  prevent  any  race  troubles  it  is  not 
unusual  in  many  places  to  form  two  lines,  one  white  and  one  colored, 
approaching  the  polls  in  their  order  and  casting  their  ballots  in  regu- 
lar turns  or  rotation. 

Is  the  ability  to  reach  the  window  and  actually  tender  the  ticket  to 
the  judges  essential  in  all  cases  to  constitute  a  good  offer  to  vote  ?  A 
voter,  who  is  at  the  polliog  place  in  due  time,  and  has  taken  his  place 
in  the  line,  ticket  in  hand,  offering  to  vote,  and  by  the  wrong  of  the 
iudges  is  prevented  from  reaching  the  window,  surely  has  as  much  right 
on  principle  to  have  his  vote  counted  as  the  voter  who  happen^i  to  be 
further  up  in  the  line  and  actually  reaches  the  window  and  is  there 
refused. 

From  the  time  the  voter  reaches  the  voting  place  and  takes  his  posi- 
tion in  line  to  secure  his  orderly  turn  in  voting  the  elector  has  com- 
menced the  act  of  voting.  It  is  a  continuous  act,  and  if  by  the  wrong- 
ful act  of  fraudulent  challenges  unduly  prolonged  by  the  connivance 
and  collusion  of  the  judges  of  the  election  the  voter  is  deprived  of  the 
opportunity  to  vote  we  think  that  the  interest  of  our  form  of  govern- 
ment and  the  purity  of  elections  demand  that  the  vote  should  be 
counted.  If  the  fraudulent  exclusion  of  votes  would,  if  successful, 
secure  to  the  party  of  the  wrong-doer  a  temporary  seat  in  Congress, 
and  the  only  penalty  for  detection  in  the  wrong  would  be  merely  a  new 
election,  giving  another  chance  for  the  exercise  of  similar  tactics,  such 
practices  would  be  at  a  great  premium  and  an  election  indeflnitely 
l)revented.  But  if  where  such  acts  are  done  the  votes  are  counted  upon 
clear  proof  aliunde,  the  wrong  is  at  once  corrected  in  this  House  and  no 
encouragement  is  given  to  such  dangerous  and  disgraceful  methods. 
Where  an  illegal  vote  is  tendered  and  cast  it  is  universally  conceded 
that  it  should  be  excluded  in  a  contest,  and  the  result  declared  the 
same  as  if  such  vote  had  not  been  cast. 

It  is  clear  upon  principle  that  where  a  legal  vote  is  offered  and  ex- 
cluded it  should  be  counted  upon  furnishing  proof  as  satisfactory  as 
that  upon  which  an  unlawful  vote  is  eliminated  from  the  count.  There 
is  no  more  difficulty  or  uncertainty  in  the  proof  in  the  one  case  than  in 
the  other.  We  are  not  disposed  in  the  present  case  to  treat  the  deposit 
of  the  votes  in  the  box  of  the  United  States  commissioners  as  a  cast- 
ing of  the  ballots.  But  such  fact  is  strong  corroborating  evidence 
and  is  entitled  to  weight  in  determining  the  purpose  of  the  voters,  and 
is  further  of  value  in  preserving  the  ballots  which  the  voters  say  they 
actually  intended  to  have  cast.  These  ballots  were  at  once  deposited 
in  a  safe  receptacle  and  preserved  until  they  were  delivered  into  the 
custody  of  the  House.  Over  four  hundred  of  the  voters  testify  to  the 
deposit  of  these  ballots,  and  that  they  were  the  same  ballots  which 
they  were  prevented  from  casting. 

If  a  number  of  persons  desirous  of  making  a  tender  of  money  at  a 
bank  should  form  in  line  during  banking  hours,  with  their  money  in 
band,  and  the  officers  of  the  bank  should  purposely  delay  the  transac- 
tion of  business  in  such  a  way  as  to  prevent  a  large  number  of  the  per- 
sons desiring  to  make  the  tender  from  reaching  the  receiving  teller's 
window  during  banking  hours,  there  would  be  no  question,  we  appre- 


WADDILL   173,  WISE.  225 

heud,  but  that  this  would  be  a  good  tender  of  money.  In  the  present 
instance  the  voters  in  depositing  their  tickets  in  a  separate  box  in  the 
custody  of  a  United  States  commissioner  were  attempting  to  carry  the 
analogy  further  by  making  their  tender  good. 

The  voter  who  was  standing  at  the  window,  ticket  in  hand,  and  offer- 
ing it  at  sundown  when  the  window  was  closed  in  his  face,  had  done  no 
more  to  have  his  vote  cast  than  the  next  man  in  the  line  or  the  other 
voters  standing  ready  to  the  extreme  rear  of  ihe  line.  They  were  all 
doing  their  best  to  exercise  their  constitufional  rights. 

It  is  the  duty  of  the  judges  to  aflbnl  every  reat^onable  facility  to  the 
voters  in  casting  their  ballots.  We  think  that  all  these  votes  were  ten- 
dered or  offered  within  the  lair  and  reasonable  meaning  of  the  law  and 
that  they  should  be  counted,  and  that  the  a'ction  of  the  judges  in  delay- 
ing the  election  was  equivalent  in  law  to  a  refusal  to  receive  th€  ballots. 

We  therefore  recommend  the  passage  of  the  following  resolution : 

Resolvedj  That  George  D.  Wise  was  not  elected  as  a  member  of  the 
Fifty-first  Congress  from  the  Third  district  of  Virginia,  and  is  not  en- 
titled to  a  seat  therein. 

Resolved,  That  Edmund  Waddill,  jr.,  was  elected  as  a  member  of 
Congress  from  the  Third  district  of  Virginia  and  is  entitled  to  a  seat 
therein. 

H.  Mis.  137 16 


VIEWS  OF  THE  MINORITY. 


(1)  Tender.     What  necessary, 

"To  hold  that  anything  short  of  an  actnal  tender  of  the  ballot  to  the 
election  of  officers  and  a  rejection  hy  them  was  an  offer  to  vote,  would 
be  a  most  dangerous  and  uncertain  rule  and  one  to  which  we  can  not 
give  our  sanction.  Where  the  evidence  plainly  establishes  the  fact  that 
a  legal  voter  offers  his  ballot  to  the  election  officers  and  they  unlawfully 
reject  the  same,  under  the  precedents  heretofore  established  such  vote 
may  be  counted  for  the  candidate  for  whom  the  voter  offered  to  vote." 

(2)  Votes.    Hlot  cast  through,  lack  of  time. 

If  all  that  is  claimed  by  the  contestant  be  conceded  for  the  sake  of 
argument,  still  the  votes  in  question  can  not  be  counted,  there  having 
been  no  actual  tender  and  rejection ;  "  they  have  not  been  offered  and 
rejected,  and  the  most  that  can  be  claimed  under  this  assumed  state  of 
facts  is  that  there  has  been  no  fair  and  full  election  within  the  meaning 
of  the  law,  and  that  neither  party  shall  be  adjudged  entitled  to  the  seat." 

But  the  minority  insist  that  the  delay  in  voting  was  not  caused  by  the 
partisans  of  contestee  or  the  collusion  of  the  judges,  and  "  under  such  a 
state  of  facts,  the  courts  determine  the  result  by  the  vote  actually  cast. 
The  enforcement  of  that  rule  in  this  case  would  give  the  seat  to  the  sit- 
ting member. 

"  But  we  are  not  satisfied  of  the  justice  of  such  rule  *  •  but  are 
of  the  opinion  that  the  ends  of  justice  will  be  subserved  by  remitting 
the  election  to  the  people  of  the  district." 

227 


VIEWS  OF  THE  MINORITY. 


April  5,  1890. — Mr.  Crisp,  frora  the  Committee  on  Elections,  submit- 
ted the  following  as  the  views  of  the  minority: 


The  contestant  in  his  notice  of  contest  charged  intimidation  upon 
the  part  of  the  partisans  of  the  contestee  at  the  polls  and  by  the  Demo- 
cratic employers  of  the  colored  voters.  He  also  charged  that  many 
illegal  votes  had  been  cast  for  the  contestee. 

In  the  argument  of  his  counsel  before  the  committee  all  these  charges 
were  abandoned,  and  in  the  report  of  the  majority  of  this  committee  no 
reference  whatever  is  made  to  them. 

We  can,  therefore,  dismiss  them  with  the  simple  remark  that  the 
proof  utterly  failed  to  sustain  them,  but  on  the  contrary  the  evidence 
discloses  the  fact  that  the  election  was  quiet  and  orderly,  and  that 
Democratic  employers  allowed  their  colored  employes  every  opportu- 
nity to  vote,  in  many  instances  giving  them  the  entire  day  of  the  elec- 
tion without  "  docking  "  them  in  their  wages. 

The  vote  returned  for  the  parties  to  this  contest,  and  upon  which  the 
certificate  of  election  was  issued  to  the  sittiug  member,  was  as  follows : 


George  D. 
Wise. 

Edmund 
WaddiU.jr. 

Chesterfield  County 

1,567 

671 

1,640 

1,688 

739 

365 

892 

8,040 

1  586 

Goochland 

988 

1,565 

2,340 

Kin"  William 

1  099 

705 

Manchester  City 

740 

KichmondCity 

6,324 

Total 

15,608 

15,347 

Showing  a  majority  of  261  votes  for  George  D.  Wise,  the  sitting 
member. 

It  is  admitted  that  the  returns  were  all  regularaud  that  thecertificate 
of  election  was  properly  issued  to  the  sitting  member,  Mr.  Wise. 

The  mnjoiity  of  the  Committee  on  Elections  insist,  however,  that 
there  was  a  conspiracy  upon  the  part  of  the  Democratic  managers  and 
the  Democratic  judges  of  election  to  carry  the  election  for  Mr.  Wise 
by  the  suppression  of  legal  colored  Republican  votes,  and  that  in 
furtherance  of  this  conspiracy  Democratic  challengers  were  present  at 
the  first,  third,  and  fourth  precincts  of  Jackson  ward  in  the  city  of 
Richmond,  where  the  colored  voters   largely  predominate,   and   by 

229 


230  WADDILL   VS.    WISE. 

unnecessary  and  unreasonable  challenges  of  the  colored  voters,  con- 
nived at  by  the  Democratic  judges  of  election,  consumed  so  much  time 
that  255  colored  voters  at  the  first  precinct,  168  at  the  third  precinct, 
and  134  at  the  fourth  precinct,  making  in  all  557  voters,  were  deprived 
of  an  opportunity  to  vote  for  the  contestant  and  that  in  this  way  the 
contestant  was  defeated  and  the  contestee  elected.' 

Of  this  number  457  were  examined  as  witnesses,  and  they  testify  that 
they  were  legal  voters,  that  they  were  present  at  the  polls  witli  their 
ballots  in  hand  for  the  contestant  endeavoring  to  vote,  but  failed,  as  they 
allege,  by  reason  of  the  great  consumption  of  time  by  the  Democratic 
challengers  in  challenging  the  colored  voters,  and  by  the  Democratic 
judges  in  receiving  them,  and  the  majority  of  the  committee  insist  that 
these  457  votes  that  were  not  cast  or  tendered  should  be  counted  for  the 
contestant,  thereby  overcoming  the  returned  majority  of  the  contestee 
of  261  votes  and  electing  the  contestant. 

CONSPIRACY. 

In  arriving  at  the  conclusion  that  there  was  a  conspiracy  upon  the 
part  of  the  Democratic  managers  and  Democratic  judges  of  election  to 
carry  the  election  by  the  suppression  of  the  colored  vote  the  majority  of 
the  committee  rely  upon  the  testimony  of  certain  witnesses  introduced 
by  the  contestant,  and  we  will  now  refer  to  some  of  them  to  give  the 
character  of  the  evidence  relied  upon  to  prove  a  conspiracy  as  charged. 

A.  (J.  EOCKECHARLIE,  p.  38  : 

Question  4.  Heard  Smith  say  he  wanted  to  delay  time.  JVhether  hia  remarica  alluded 
to  the  election  or  not  I  can't  say. 

W.  A.  Bendedict,  p.  63 : 

Question  2.  I  think  on  the  day  before  the  election,  November  the  5th,  at  the  ter- 
minus of  the  Eichmond  Union  Passenger  Railway,  29th  and  P  streets,  Marshall  ward ; 
present,  Mr.  Timberlake,  one  of  the  judges  of  election,  first  precinct,  Jackson  ward, 
Mr.  Buck  Adams  and  Capt.  Peter  Smith,  and  good  many  others  whose  names  1  do  not 
know.  Mr.  Adams— rather  Mr.  Timberlake — remarked  first  that  he  calculated  hav- 
ing the  handling  of  about  1,'200  negro  votes  in  Jackson  ward.  Mr.  Adams  then  re- 
marked that  we  will  shut  out  about  half  of  them.  Mr.  Timberlake,  in  reply,  said, 
"Eight  you  are,  partner.  "  I  do  not  know  whether  there  is  anything  else  ;  but  there 
is:  I  now  recall  another  remark  by  one  of  the  employees  of  the  railroad:  "Tim- 
berlake, you  are  a  damn  fool  for  talking  that  way.  You  will  get  yourself  iijto 
trouble."    I  believe  that  is  all  I  remember  now. 

WiLUAM  L.  Timberlake,  p.  1090 : 

GOth.  Quea.  Mr.  Ira  Benedict,  tvho  testified  on  behalf  of  Judge  Waddill^  stated,  as  tcell 
as  I  can  recollect,  that  a  day  or  two  aflei'  the  election  he  had  a  conversation  with  you  near 
the  eastern  terminus  oj  the  electric  line,  and  that  in  that  conversation  you  boasted  thai  you 
and  the  other  Democratic  judge  had  shut  out  or  kept  from  voting  two  or  three  hundred  colored 
voters  in  the  first  precinct  of  Jackson  ward  ;  did  you  make  that  statement,  or  one  similar  to 
it;  if  not,  state  the  conversation  as  well  as  you  can  recollect, — Ans.  1  did  not  make  that 
statement.  Capt.  Sullivan,  Mr.  Benedict,  and  myself  icere  talking  over  there  one  evening 
about  shutting  out  of  voters,  and  Capt.  Sullivan  said,  "  Timberlake,  how  many  were  shut 
out  in  your  precinct  ?"  I  said,  "  About  two  or  three  hundred."  Mr.  Benedict  said,  "  What 
was  the  cause'i  how  were  they  shut  out  ?"  I  told  him,  "  It  ivas  due  to  the  fact  that  the  liepub- 
lican  judge  and  liepublican  supervisor  delayed  the  voting  by  taking  so  long  to  find  the  name 
of  the  voters  and  by  making  speeches  out  of  the  windoiv." 

H.  P.  Harper,  p.  69  : 

1.  Q.  State  your  name,  age,  residence,  and  occupation. — Ans.  H.  P.  Harper,  48  yrs. 
4  mos.  13  days;  304  West  Clay ;  in  little  wood  and  coal  business. 

2.  Q.  Were  you  at  the  Ist  precinct  of  Jackson  ward  on  the  6th  of  Nov.  last?  If  so, 
please  state  at  what  time,  and  what  5  ou  heard  in  connection  with  the  election,  if  any- 
thing.— Ans.  I  was  at  the  precinct  cor.  Gilmer  and  Leigh.  I  got  there  seven  or  little 
after  seven.  I  rent  a  place  next  door  to  the  polls.  I  was  there  off  and  on  all  day;  my 
business  is  there.  During  the  morning — I  don't  know  exactly  what  part  of  the  day — 
on  or  aboat  eight  o'clock,  I  asked  a  gentleman,  "  What  is  this  that  yon  are  springing 


WADDILL   VS.    WISE.  231 

on  U8  now  ?  "  and  he  said  that  this  is  the  ballot  (it  is  imijossible  for  me  to  get  the 
exact  words),  the  coustitntional  ballot  to  be  voted  on  every  twenty  years ;  but  there 
were  some  points  about  it  that  had  not  been  settled  by  law,  or  never  been  exactly 
understood,  or  some  way  like  that,  but  that  Mr.  Barbour  and  Gen'l  Mahoue  had  had 
an  understanding  that  they  would  make  no  point  upon  that  question.  They  are  used 
more,  ho  told  me,  in  this  ward  than  any  other.  I  don't  say  positive  that  is  the  exact 
word,  but  what  he  did  say  was  to  the  effect  that  they  were  to  hinder  and  delay  the 
election  by  asking  questions  and  having  them  read. 

Lewis  Stuart,  p.  45 : 

Question  10.  Heard  Belvin  say,  "  We  Intend  to  hold  them  down  to-day." 

Edwakd  Thompsox,  p.  1441 ; 

Question  15.  Heard  Belvin  say  in  the  morning  that  he  intended  to  hold  that  vote 
down  that  day  within  300. 

This  man  had  been  guilty  of  embezzling  funds  belonging  to  the  post- 
of&ce  while  employed  iu  it.  What  weight  is  to  be  given  to  his  testi- 
mony we  leave  the  House  to  determine. 

-ToHN  B.  Newell,  p.  73  :  . 

Question  12.  Heard  Henry  Charters,  a  Federal  office-holder  at  Washington,  and  an 
appointee  of  contestee,  say  at  First  Clay  precinct,  ''By  God!  we  have  knocked  the 
niggers  out  of  300  votes  in  Jackson  ward,  and  Yankee  Allan  is  raising  hell  about  it." 

John  W.  Graves,  p.  138 : 

Question  3.  When  approaching  the  polls  to  vote  in  white  line  was  whispered  to  by 
the  assistant  challenger,  who  said,  "Delay  them  all  you  can."  Upon  enquiring 
as  to  what  was  said,  the  challenger  said,  "  When  judge  questions  you  in  regard  to 
the  constitutional  amendment,  ask  him  what  it  means ;  what  it  is  for,  and  all 
about  it." 

29.  X  Q.  la  a  not  a  well-known  fact  among  the  white  Democrats  of  Richmond  that  you 
were  a  prominent  candidate  for  the  legislature  on  the  Republican  or  Coalition  ticket  in  the 
fall  of  '87  ? — Ans.  I  suppose  so. 

30.  X  Q.  Do  nou  think  it  probable  that  under  these  circumstances  a  Dem.  would  have 
been  foolish  enough  to  instruct  you  as  to  hoto  you  should  vote  and  how  you  should  cast  your 
ballot  at  the  next  succeeding  election  f — Ans.  I  am  positive  that  the  gentleman  ivho  advised 
me  did  not  know  me  nor  my  name.  That  is,  I  judge  so  from  his  expression.  He  advised 
me  before  my  name  teas  called,  and  after  I  announced  my  name  to  the  judge  he  did  not  seem 
to  recognize  me  nor  did  I  know  him.  I  presumed  he  was  a  Republican.  I  did  not  know 
positively  that  he  was  one. 

James  H.  Harvey— p.  195 : 

10th  question.  State  whether  or  not  you  heard  any  one  say  anything  about  the 
voting  in  Jackson  Ward? — Answer.  I  heard  at  the  polls  a  great  many  say  the  voting 
was  purposely  delayed  in  order  to  hinder  the  colored  voters  from  casting  their  bal- 
lots. After  the  polls  were  closed  at  night,  while  waiting  in  front  of  the  Dispatch 
ofiSce,  1  heard  a  man  state  (I  inquired  his  name  and  I  was  told  he  was  Petit)  tliat  he 
had  had  the  pleasure  that  day  of  seeing  500  or  600  negroes  cut  out  of  their  votes. 
He  said  he  had  been  carrying  refreshments  from  Biuford's  ouc  to  the  boys  in  Jackson 
ward. 

27th.  X  Q.  Had  you  ever  seen  the  man  tvhom  you  heard  make  the  statement  in  front  of 
the  Dispatch  office  on  the  night  of  the  election  before'^ — Ans.  Not  to  know  him. 

'28th.  X  Q.  Do  you  know  anything  of  himf — Ans.  No,  sir. 

James  H.  Barrett,  p.  209  : 

2d.  Question.  Where  were  you  on  the  evening  before  the  6th  day  of  November 
last,  and  what  occurred  with  reference  to  the  election  to  be  held  the  next  day  ? — An- 
swer. I  was  coming  down  Seventeenth  street  between  7  and  8  o'clock  in  the  evening, 
and  Frank  Mann  overtaken  me  by  the  elevator.  We  were  on  our  way  to  the  Repub- 
lican liefidqnarters.  When  we  arrived  opposite  Venable  street  we  met  Mr.  Finnerty 
and  Mr  Gentry  talking.  As  we  arrived  opposite  them  heard  Mr.  Finnerty  say  to  Mr. 
Gentry,  "  Vote  these  niggers  slow  to-morrow."  His  reply  was,  "  All  right."  At  that 
time  1  had  gotten  by  them  and  did  not  hear  auy  more  that  passed.  My  friend,  Frank 
Mann,  stopped  and  said  something  to  theui  and  then  overtaken  me. 

Other  testimony  of  a  similar  nature  appears  in  the  record,  but  we  do 
not  think  it  necessary  to  give  it.  It  all  consists  of  loose,  vague  state- 
ments of  disconuected  parts  of  conversations  or  an  occasional  remark 
made  by  some  excited  or  enthusiastic  partisan,  such  as  may  be  heard 


232  WADDILL    VS,    WISE. 

in  the  heat  and  excitement  of  any  election,  and  is  refuted  by  the  evi- 
dence as  to  what  actually  transpired  at  the  polls  on  the  day  of  election. 

The  charge  that  the  judges  of  elections  purposely  and  deliberately 
retarded  and  obstructed  the  voting  is  not  sustained. 

At  the  iirst  precinct  it  is  shown  that  the  colored  registration-book 
was  in  the  hands  of  the  colored  liepublican  judge;  that  he  was  an  in- 
telligent man  and  a  merchant,  and  that  he  was  assisted  during  the 
entire  day  in  his  labors  by  the  liepublican  Federal  supervisor,  a  white 
man,  and  that  if  there  was  delay  in  voting  it  was  caused  in  great  meas- 
ure by  the  tardiness  of  this  liepublican  judge  and  liepublican  Federal 
supervisor  in  finding  the  names  of  the  voters  on  the  registration-book. 

it  also  appears  that  this  liepublican  Federal  supervisor  was  an 
excitable  and  irascible  man,  and  that  he  persisted  in  raising  objections 
to  the  challenging  of  voters  and  iu  presenting  his  views  at  length  upon 
evt^ry  question  which  was  raised,  thereby  consuming  much  time;  that 
he  was  ver^^  ott'ensive  iu  his  language  and  conduct  to  the  Democrats, 
and  did  nioie  than  all  others  to  irritate  and  produce  bad  feeling. 

We  here  refer  to  the  following  depositions  to  show  that  much  delay 
was  caused  as  we  have  just  stated. 

Louis  B.  Schdtte,  one  of  the  clerks,  page  1106: 

1st.  Ques.  What  is  your  name,  age,  residence,  and  occupation  ? — Ans.  My  name  is 
Louis  B.  Schutte;  my  age  is  34  years;  my  residence  Is  No.  550  Brooke  avenue,  Rich- 
mond, Va.,  and  I  am  a  machinist. 

2ud,  Qut^s.  On  the  6th  of  last  November  were  you  one  of  the  clerks  at  the  1st  pre- 
cinct, Jackson,  and  did  you  act  in  that  capacity  during  the  entire  day  ? — Aus.  Yes, 
sir. 

3rd.  Ques.  As  such  what  duties  did  you  perform  ? — Ans.  To  see  that  the  names 
were  properly  recorded  upon  the  poll-book. 

4th.  Ques.  Who  held  the  registration-book  forthe  colored  voters  at  this  precinct? — 
Ans.  Bedford  C.  Stokes. 

5th  Ques.  To  what  political  party  do  you  belong,  and  to  what  does  said  Stokes  be- 
long?— Ans.  I  belong  to  the  Democratic  party  and  Stokes  to  the  Republican. 

6th.  Ques.  How  long  have  you  acted  as  clerk  at  this  precinct? — Aus.  I  lliink  f(»ur 
years.  I  remember  having  been  clerk  on  three  occasions.  It  may  have  been  more 
than  four  years. 

7th.  Qnes.  How  long  has  said  Stokes  been  clerk  at  said  precinct? — Ans.  About  four 
or  five  years. 

8th.  Ques.  What  is  his  business? — Ans.  He  keeps  a  small  store  on  Brooke  avenue. 

Dth.  Ques.  Are  his  customers  mostly  white  or  colored  ? — Ans.  I  don't  ? 

10th.  Ques.  Have  you  any  personal  acquaintance  with  any  large  number  of  colored 
voters  at  that  precinct? — Ans.  Yes,  sir;  I  know  a  good  many  of  them. 

14th.  Qnes.  State  who  was  in  the  polling-room  from  the  opening  to  the  closing  of 
the  polls  on  the  day  of  the  last  election,  and  give  their  official  positions  on  that  day. — 
Aus.  R.  J.  Cottrell,  registrar  and  judge;  W.  L.  Timberlake  and  Bedford  C.Stokes, 
judges ;  Louis  B.  Schutte  and  S.  D.  Chamberlayne,  clerks  ;  George  Duncan  and  Samuel 
Brittou,  supervisors  ;  these  were  all. 

15th.  Ques.  State  whether  or  not  Mr.  Chamberlayne  was  on  that  day  deaf,  and  if 
deaf,  whether  to  such  an  extent  that  he  could  not  hear  any  discussion  that  might  have 
taken  place  between  the  officials  inside  of  the  room  and  parties  on  the  outside  of  the 
room. 

(Excepted  to  by  the  contestant,  because  leading  and  because  Chamberlayne  is  not 
only  the  best  evidence  of  the  facts  inquired  into,  but  is  the  only  evidence  ;  the  wit- 
ness Schutte  can't  possibly  know  those  facts.) 

Ans.  In  answer  I  would  say  that  in  speaking  loudly  to  Mr.  Chamberlayne  he  can 
hear,  but  I  know  him  to  be  very  deaf.  I  can't  answer  as  to  what  he  heard.  I  am 
positive  that  he  could  not  hear. 

16th.  Ques.  Is  Mr.  Duncan  a  Republican  or  a  Democrat  ? — Ans.  He  is  a  Repub- 
lican. 

17th.  Ques.  Were  the  ballots  received  through  a  window  or  a  door  ? — Ans.  Through 
a  window. 

18th.  Ques.  Was  the  window  in  the  length  or  width  of  the  room? — Ans.  In  the 
length  of  the  room  about  the  center. 

19th.  Ques.  How  wide  was  the  window  ? — Ans.  About  three  feet. 

20th.  Ques.  Describe  the  location  of  the  ballot-boxes,  and  of  all  the  parties  in  the 


WADDILL   VS.   WISE.  233 

room. — Aus.  The  ballot-box  was  near  tLe  center  of  the  table,  about  a  loot  and  a  half 
or  two  feet  from  the  window.  Mr.  Cottrell  was  right  at  the  ballot-box;  he  received 
the  ballots  and  put  them  in  the  ballot-box.  Mr.  Timberlake  was  just  opposite  Mr. 
Cottrell  and  also  near  the  center  of  the  table  ;  he  was  judge  and  had  charge  of  the 
white  registration-book.  Stokes  was  seated  at  the  north  end  of  the  table  near  Mr. 
Timberlake,  and  had  charge  of  the  colored  registration  book.  Louis  B.  Schutte,  my- 
self, was  seated  just  opposite  Stokes,  near  the  window,  and  had  charge  of  one  of  the 
poll-books.  Mr.  Chamberlayne  was  seated  on  my  right  ;  he  also  had  charge  of  one 
of  the  poll-books.  Mr.  Britton  was  standing  near  to  and  behind  Mr,  Stokes  ;  he  was 
the  Democratic  supei-visor.  Mr.  Duncan — Itvill  state  that  Ma  position  was  very  irregu- 
lar during  the  day;  he  teas  sometimes  at  the  window  and  sometimes  and  very  often  at  the 
colored  registration  book. 

'21st.  Ques.  Could  you  or  not,  from  the  position  you  occupied,  see  what  was  going 
on  in  the  room  ? — Ans.  Yes,  sir. 

22nd,  Ques.  Could  you  or  not  see  what  took  place  from  the  front  of  the  window  on 
the  outside  ? — Ans.  Yes  sir. 

23rd.  Ques.  Did  Mr.  Britton,  during  the  day,  take  any  part  in  the  election,  except 
being  present;  if  so,  state  what  he  did  or  said? — Aus.  He  did  not  take  any  part 
in  the  election,  except  when  the  obstruction  was  made  there  by  Ben.  Scott,  and  he 
ordered  him  to  take  it  away,  and  if  he  did  not  he  said  he  would  have  him  arrested. 

24th.  Ques.  Who  was  Ben.  Scott,  what  were  his  politics,  and  what  was  the  char- 
acter of  his  obstruction  ? — Ans.  Ben.  Scott  is  a  colored  man,  and  as  far  as  I  know  he 
is  a  Republican.  His  obstruction  was  a  scantling,  I  think,  that  was  about  to  be 
placed  across  the  street,  and  Mr.  Britton  ordered  him  to  take  it  away. 

25th.  Ques.  Did  Mr.  Britton,  at  the  time,  give  any  reason  for  ordering  the  scantling 
to  be  taken  away  ;  if  so,  state  what  he  said? — Ans.  He  said  it  had  no  business  there, 
and  I  further  think  he  said  it  was  an  obstruction. 

26t/(.  Ques.  Did  Mr.  Duncan  take  any  part  in  that  election,  besides  being  present?  If, 
so,  state,  as  tvell  as  you  can,  what  he  said  or  did  during  the  day. — Ans.  Well,  yes,  he  took 
part  in  election;  he  would  get  up  in  the  windotv  oftentimes  during  the  day,  telling  the  crowd 
'•'■  for  God's  sake  to  get  back ;  if  they  did  not  they  could  not  vote;"  he  tcould  go  from  the 
window  to  the  registration  book,  held  by  Mr.  Bedford  C.  Stokes,  trying  to  help  or  helping 
him  to  find  the  names  of  the  voters  ;  I  would  state  also  that  he  was  a  great  annoyance  to 
Mr.  Stokes,  and  at  times  got  him  so  excited  that  he  did  not  know  what  he  was  doing  ;  in- 
stead of  saying  that  he  did  not  know  what  he  was  doing,  say  that  he  did  not  knoiv  what 
name  hetoas  looking  for  ;  1  also  remember  that  in  looking  for  the  name  of  Scott,  I  think, 
not  finding  Scott,  Duncan  said  "you  are  foolish  ;  you  have  got  the  wrong  name;  look  in 
the  M's."  I  also  remember  thename  of  Washington  being  called,  and  he  teas  looking  under 
the  B'sfor  thename  of  Bunn;  they  were  looking  for  the  name  of  Quarlesfor  about  three 
or  four  minutes,  and  said  they  could  not  find  it,  but  subsequently  found  his  name.  He 
further  objected  to  VottrelVs  reading  the  constitutional  ballots,  that  is,  for  or  against  the 
constitution;  he  ivould  frequently  pull  out  his  watch  and  time  Mr.  Cottrell,  saying,  this 
took  you  2i,  sometime82i,  and  sometimes  3  minutes;  I  think  he  had  a  blank  upon  which  he 
kept  the  time;  I  remarked  to  Mr.  Timberlake  to  pull  out  kis  watch  and  see  if  this  was  coi'- 
rect ;  the  next  ballot  being  read,  it  took  from  f  to  1  minute  to  read  it. 

(The  notary  makes  the  following  note:  The  witness, in  answering  the  foregoing 
question,  several  times  mentioned  in  the  name  Mimms  in  connection  with  the  name 
Scott,  and  at  the  suggestion  of  Judge  Waddill  the  notary  was  requested  to  interline 
what  the  witness  said :  The  notary  then  asked  the  witness  what  he  wanted  added  in 
his  answer  in  connection  with  the  name  Scott,  and  understood  the  witness  to  say,  add 
the  words  "look  in  the  M's;"  Judge  Waddill  said  he  understood  the  witness  to  say 
"  look  in  the  M's  for  Mimms  ;"  thereupon  the  notary  asked  the  witness  which  he  said, 
and  he  replied  that  the  interlineation  as  made  by  the  notary,  to  wit,  "look  in  the 
M's,"  was  what  he  said  and  was  what  he  wanted  added.) 

27th.  Ques.  Where  at  the  window  did  Mr.  Belvin  stand — on  the  side  where  the 
colored  voters  were  or  on  the  side  where  the  white  voters  were  ? — Ans.  On  the  side 
where  the  white  voters  were. 

28th.  Ques.  How  much  of  the  window  did  he  occupy  ? — Ans.  I  can't  say  he  occu- 
pied any  ;  he  was  standing  on  the  side,  and  sometimes  he  would  look  around  it  and 
put  his  head  into  it. 

29th.  Ques.  When  a  white  voter  came  up,  would  Mr.  Belvin  step  aside  and  let  him 
vote  or  force  the  voter  to  go  around  him  ? 

(Excepted  as  clearly  le'ading.) 

Ans.  To  the  best  of  my  recollection  he  forced  the  voter  to  go  around  him. 

30<A.  Ques.  Did  Mr.  Belvin' s  position  or  conduct,  as  Democratic  challenger,  in  anyway 
prevent  the  colored  voters  from  getting  up  to  the  window  on  their  sidel — Ans.  It  did  not; 
but  on  the  contrary  he  showed  a  kindness  to  both  trhite  and  colored  so  as  to  let  them  vote. 

3l8t.  Ques.  Did  Mr.  Duncan  at  any  time  during  the  day  interfere  with  Mr.  Belvin 
in  the  performance  of  his  duties  as  Democratic  challenger? — Ans.  He  did. 

32nd.  Ques.  What  was  the  character  of  this  interference  ? — Ans.  The  only  recol- 


234  WADDILL   VS.   WISE. 

lection  I  have  is  that  Mr.  Duncan  threatened  to  have  him  arrested  on  several  occa- 
sions and  had  him  arrested. 

33rd  Ques.  (By  same.)  When  Mr.  Belvin  would  challenge  a  voler  at  any  time 
during  the  day,  did  you  hear  the  challenge  except  during  the  half  hour  when  you 
were  absent?— Ans.  Yes,  sir. 

34th  Ques.  (By  same.)  State  whether  or  not  he  challenged  only  those  that  he  had 
gi'ounds  to  suspect  had  no  right  to  vote,  or  whether  he  challenged  unnecessarily  and 
by  unreasonable  questions  f 

(The  contestant  excepts  to  this  question,  and  asked  that  the  witness  would  be  sent 
out  the  room  during  the  time  it  was  being  stated,  which  was  accordingly  done.  The 
question  is  clearly  leading  and  indicates  to  the  witness  the  answer  he  is  expected  to 
give.  It  moreover  asks  the  witness  to  state  what  he  can  not  know,  namely,  whether 
Belvin  only  challenged  persons  whom  he  suspected.  The  witness  can  not  know  his 
suspicions.) 

Ans.  I  think  he  had  a  right  to  challenge  those  whom  he  did  challenge. 

35th  Ques.  (By  same.)  State  as  well  as  you  can  what  Mr.  Duncan  would  say  when 
he  would  make  a  speech  to  the  voters  on  the  outside  and  to  whom  his  remarks  were 
addressed,  the  white  or  colored  men  present? 

(At  the  request  of  Judge  Waddill  the  witness  is  sent  out  of  the  room  in  order  that 
Judge  Waddill  may  except  to  the  foregoing  question. 

The  contestant  excepts  to  the  foregoing  question  on  the  ground  that  the  witness  has 
nowhere  stated  that  Duncan  made  a  speech  to  any  one,  either  white  or  colored. 

The  counsel  for  contestee  says  that  the  witness,  in  answer  to  question  26,  has  said 
that  Duncan  got  up  and  would  go  to  the  wiudow  and  make  statements  and  remarks 
to  the  crowd.) 

Ans.  As  to  the  exact  language,  I  don't  know  what  he  said  more  than  I  said  in  the 
oflFset,  that  was  when  he  got  after  the  crowd  to  keep  back,  and  on  a  great  many  oc- 
casions threatened  to  arrest  Mr.  Belvin.  I  don't  know  exactly  to  whom  he  allude  to, 
but  as  to  the  keeping  of  the  crowd  back,  he  alluded  to  the  colored  people ;  they  were 
the  only  ones  that  were  shoving  up  against  the  window. 

36th.  Ques.  (By  same.)  Were  these  speeches  or  talks  frequently  or  rarely  made  during 
the  day  f — Ans.  Frequently, 

37th. Ques.  (Bysame.)  Were  they  short  or  of  considerable  duration  1  State  about  hoio 
long  he  icould  occupy  the  ttnndmo  on  such  occasions. 

(This  and  the  last  preceding  question  excepted  to  by  the  contestant  because  clearly 
leading.) 

Ans.  I  would  state  that  sometimes  they  were  of  considerable  duration,  but  as  to  the  exact 
time  I  am  unable  to  give  you  that. 

38th.  Ques.  (Bysame.)  Would  the  voting  go  on  at  these  times,  or  would  it  be 
stopped  until  Mr.  Duncan  had  concluded  his  remarks  and  gotten  ontof  the  window? — 
Ans.  Iticould  be  stopped  by  Mr.  Duncan. 

39tli.  Ques.  (By  same.)  Did  the  conduct  of  Mr.  Duncan,  both  as  regards  these 
remarks  and  his  conduct  towards  the  officers  of  election  in  the  polling  precinct,  ac- 
celerate or  impede  the  casting  of  the  vote  ? — Ans.  What  are  you  getting  at  now  ? 
(The  notary  now  explains  the  question.  Then  the  witness  answered  as  follows:) 
It  caused  delay.     I  know  what  you  are  getting  at  now. 

40th .  Ques.  (By  same).  Why  did  Duncan  go  around  to  help  Stokes  find  the  names  i 
Was  Stokes  slow  or  rapid  in  finding  the  names  on  the  registration  book  of  the  colored 
voters  ? — Ans.  Mr.  Duncan  went  around  to  assist  Mr.  Stokes  in  finding  iUe  narnes.  Mr. 
Stokes  was  very  slow  indeed. 

41st.  Ques.  (By  same.)  Did  you  hear  Duncan  make  any  comments  on  Stokes  during  the 
day  ;  if  so,  tchat  did  he  say  ? — Ans.  Yes,  sir  ;  he  said  on  several  o  casions  he  was  a  fool- 
ish man 

42nd.  Ques.  (By  same.)  Yon  have  already  stated  that  Stokes  got  very  excited  and 
worried  ;  was  Mr.  Duncan  cool  or  excited  on  that  day  ? — Ans.  Excited,  more  so  than 
that  of  Mr.  Stokes. 

43rd.  Ques.  (By  same.)  Did  Mr.  Duncan  by  his  interference  with  Stokes  make 
him  find  the  names  faster,  or  did  he  confuse  him  and  delay  him  iu  finding  them  ? — 
Ans.  He  did  not  make  him  find  them  faster,  but  on  the  contrary  delayed  him. 

44th.  Ques.  (By  same.)  When  a  white  voter  asked  for  an  explanation  of  the  constitu- 
tional ballot,  as  you  stated  in  answer  to  the  26</i  quea.,  icould  Duncan  object  or  not;  and,  if 
80,  what  would  he  do  on  these  occasions? — Ans.  Yea,  sir;  he  would  object,  and  would  tell 
Cottrell,  the  judge,  he  had  no  right  to  read  them.  He  would  take  out  his  xcatch  and  time 
him, 

45th.  Ques.  (Bysame.)  Would  these  wrangles  between  the  judges  and  Duncan 
cause  much  delay  ? 

(Excepted  to  by  the  contestant  as  leading.) 

Ans.  Yes,  sir. 

46th.  Ques.  (By  same.)     When  a  voter  was  challenged  by  Mr.  Belvin  or  any  other 


WADDILL   VS.    WISE.  235 

Democratic  challenger  would  Duncan  allow  him  to  be  sworn  without  objection  or 
discussion  t 

(Excepted  to  as  loading  by  the  contestant.  The  witness  should  be  asked  what  Dun- 
can would  do  under  these  circumstances.) 

Ans.  Yes,' sir;  he  w<mld  object  to  his  being  eworn. 

47th.  Ques.  (By  same.)  State,  as  well  as  you  can,  what  objection  or  remarks  he 
would  make. — Ans,  His  remarks  to  Mr.  Belvin  would  be  that  he  had  no  right  to 
swear  liim  ;  that  the  man  was  a  legal  voter. 

48th.  Ques.  (By  same.)  Was  it  on  such  occasions  that  he  threatened  to  have  Mr. 
Belvin  arrested  ? — Ans.  Not  altogether  on  those  occasions.  If  Mr,  Belvin  simply  said 
he  challenged  a  man  he  would  threaten  to  have  him  arrested  then. 

49th.  Ques.  (By  same.)  Did  he  threaten  to  have  any  others  arrested,  and  if  so, 
who  ? — Ane.  Yes,  sir,  he  did;  Mr.  H.  M.  Smith,  jr. ;  he  was  the  only  other  one  that  I 
knew  of. 

(The  witness  says  upon  reflection  that  he  thinks  he  also  threatened  to  have  Mr. 
Cottrell  arrested  when  he  read  about  the  constitution. 

At  this  time,  to  wit,  2."-i5  p.  m.,  it  was  proposed  to  adjourn  for  dinner,  which  con- 
testant was  at  first  willing  should  be  done,  provided  that  the  time  might  be  extended, 
instead  of  to  4,  as  usual,  to  5  o'clock,  so  that  he  might  fill  an  engagement  to  take  the 
deposition  of  auold  gentleman  from'the  country,  which  was  to  be  taken  at  3  o'clock 
p.  m.  before  another  notary,  and  at  the  taking  of.  which  it  was  important  for  him  to 
be  present,  and  that  he,  the  contestant,  wou.'d  agree  to  work  in  the  night,  so  as  to 
make  up  the  hour  lost  before  this  notary,  from  four  to  five  ;  but  this  accommodation 
not  being  gr.inted,  contestant  insisted  that  we  should  proceed  with  the  taking  of  the 
deposition  until  the  usual  time  of  adjournment,  said  time  being  from  three  to  four 
o'clock.  The  contestant  further  says  that  he  thinks  the  examination  of  this  witness 
should  be  concluded  and  cross-examination  begun,  if  possible,  while  he  is  on  the 
stand. ) 

At  this  point  the  witness  says  that  he  desires  to  have  his  answer  to  the  29th  ques- 
tion corrected  so  as  to  read  as  follows,  to  wit :  Mr.  Belvin  did  not  use  any  force  to- 
wards the  votf  r,  but  simply  did  not  move  out  of  his  way,  and  the  voter  had  to  walk 
around  him,  Mr.  Belvin  pressing  himself  up  against  the  wall  to  enable  the  voter  to 
pass. 

The  contestant  desires  the  notary  to  record  the  fact  that  he  took  a  recess  until  4 
o'clock  at  this  point,  which  was  accordingly. 

50th.  Ques.  (By  same.)  Did  Mr.  Duncan  at  any  time  during  the  day  threaten  to 
arrest  Mr.  Timberlakef — Ans.  I  think  he  did. 

51st.  Ques.  (By  same.)  For  what  did  he  threaten  to  arrest  him? — Ans.  There  was 
a  contest  going  on  as  to  whether  he  would  allow  a  voter  to  vote  or  not ;  they  finally 
consented  to  vote  him. 

52nd.  Ques.  (By  same.)  Several  witnesses,  called  on  behalf  of  Judge  Waddill, 
testified  that  Mr.  Belvin  delayed  the  voting  by  asking  such  unnecessary  questions  as 
the  fijllowing:  "As  to  whoowned  the  voter  before  the  war?"  "Whether  he  had  any 
children,  and  how  many  he  had  ?"  State  whether  or  not  you  heard  Mr.  Belvin  or  any 
Democratic  challenger  ask  any  questions  similar  to  those. — Ans.  I  did  not. 

53rd.  Ques.  (By  same.)  Sitting,  as  you  say  you  were,  directly  in  front  of  the  win- 
dow, were  you  in  such  a  position  aud  close  enough  to  the  window  to  hear  the  ques- 
tions asked  of  the  voters  by  the  Democratic  challengers  ? — Ans.  Yes,  sir. 

54th.  Ques.  (By  same.)  Do  you  remember  what  were  the  grounds  upon  which 
the  Democratic  challengers  challenged  the  voters;  and  if  so,  mention  such  as  you  re- 
member?— Ans.  One  of  the  principal  grounds  was  as  to  their  moving  from  one  place 
to  another;  the  next  ground  was  they  had  a  printed  list  of  the  disqualified  voters 
from  the  hustings  and  police  court  of  this  city, 

55<ft.  Ques.  (Bfi  same.)  Of  all  the  pei'sons  at  the  polls  that  day,  who  did  most  by  inter- 
ference with  ihe  voters,  the  officers  of  election  and  others  to  retard  and  obstruct  the  voting  f — 
Ans.  I  think  Mr.  Duncan  is  one,  Mr.  Bedford  C.  Stokes  in  the  slowness  in  getting  ihe 
names  in  another,  and  the  continued  pushing  of  the  colored  voters  on  theoutside  anothej:  I 
should  certainly  mention  Mr.  Geo.  Duncan  as  the  man  that  did  ike  most  to  obstruct  the 
voting. 

56th„  Ques.  (By  same.)  You  state  that  you  have  been  clerk  at  this  precinct  for 
about  tivo  years ;  state  whether  or  not  the  Democratic  challengers  did  any  more  chal- 
lenging than  was  absolutely  necessary  to  find  out  whether  or  not  the  person  offering 
to  vote  had  a  legal  right  to  vote  or  not  ? — Ans.  I  don't  know  every  voter  in  the  pre- 
cinct, but  I  don't  think  they  did  any  more  challenging  than  they  ought  to  have  done 
on  this  occasion 

57ih.  Ques.  (By  same.)  Who  challenged  in  the  place  of  Mr.  Belvin  when  he  went 
away? — Ans.  Mr.  H.  M.  Smith,  jr. 

58th.  Ques.  ( By  same. )  Did  he  ask  any  frivolous  and  unnecessary  questions,  or 
did  he  ask  questions  similar  to  those  that  you  have  said  Mr.  Belvin  asked  f — Ans. 
He  asked  questions  similar  to  those  asked  by  Mr.  Belvin. 


236  WADDILL    VS.    WISE. 

59th.  Quiis.  (By  same.)  Seviral  wituesaeH  who  have  testified  in  behalf  of  Judge 
Waddill  have  stated  that  Mr.  Cottrell,  vrho  received  the  ballots,  greatly  hindered 
and  delayed  the  voting  ;  did  you  see  Mr.  Cottrell  during  the  entire  day  do  anything 
to  hinder  or  delav  the  voting  ;  and  if  so,  what  ? — Ans,  I  did  not. 

60th.  Ques.  (By  same.)  Did  you  see  Mr.  Cottrell  do  anything  during  the  day  to 
aid  any  particular  voters  to  get  in  their  ballots  after  they  had  been  challenged ;  if 
so,  what  ? — Ans.  He  did  not  do  anything  to  hinder  any  voter  from  getting  in  his  bal- 
lot, but  I  don't  remember  seeing  him  do  anything  particularly  to  aid  any  particular 
voter  to  get  in  their  vote  after  they  had  been  challenged. 

Gist.  Ques.  (By  same.)  If  a  party  came  to  the  polls  who  Mr.  Cottrell  personally 
knew  had  a  right  to  vote,  and  was  challeged  by  the  challenger,  would  Mr.  Cottrell 
go  through  the  form  of  swearing  him  before  permitting  him  to  vote,  or  would  he  vote 
him,  stating  that  he  knew  the  party  had  a  right  to  vote  ? 

(Excepted  to  as  leading  by  the  contestant.) 

Ans.  I  think  that  that  happened  during  the  day ;  that  is,  that  he  would  vote  him 
without  swearing  him. 

G2nd.  Ques.  (By  same.)  Did  the  police  force  of  the  city  of  Richmond,  or  the  U. 
S.  deputy  marshals  who  were  at  at  this  precinct,  take  any  part  in  the  election,  one 
way  or  another,  further  than  to  do  all  in  their  power  to  preserve  order? — Ans.  No, 
sir. 

63rd.  Ques.  (By  same. )  Did  the  line  of  colored  voters  and  the  colored  men  around 
the  voting  window  make  any  comments  on  Mr.  Duncan's  conduct? — Ans.  I  think 
they  did,  some  of  them  saying  that  he  was  very  much  excited;  and  I  am  under  the 
impression  that  I  heard  the  remark  made  that  he  talked  too  much.  I  am  not 
positive,  but  I  think  I  heard  it  said  by  those  on  the  outside  that  there  are  two  men 
in  there  and  they  can't  find  one  man's  name. 

From  the  testimony  of  this  witness,  who  was  present  necessarily  all 
day  at  the  polls,  and  in  a  position  to  see  and  hear  everything  done  by 
the  judges  and  Republican  Federal  supervisor,  we  submit  that  the  Dem- 
ocratic judges  did  nothing  to  impede  and  retard  the  voting ;  that  they 
simply  discharged  their  sworn  duty  to  pass  upon  the  legality  of  a  vote 
when  it  was  challenged.  We  submit  further  that  if  there  was  unusual 
delay  it  was  caused  by  the  Eepublican  judge  of  election  and  Repub- 
lican Federal  supervisor — the  slowness  of  one  to  find  the  names  of  the 
colored  voters  on  the  registration  book,  and  the  officiousness,  assertion 
of  authority,  and  ill-temper  of  the  other. 

William  L.  Timberlake,  one  of  the  judges,  page  1088: 

'J7th.  Ques.  (By  same.)  Did  Mr.  Duncan  take  any  part  in  that  election  besides 
being  present  ?  If  so,  state  as  well  as  you  can  recollect  whet  he  said  or  did  during  the 
day  f— -Ans.  Yes,  sir,  he  did.  The  first  thing  in  the  morning  he  objected  to  Mr.  Bel- 
vin  standingiat  the  window.  Every  now  and  then  he  would  go  to  the  window  and  make 
a  short  speech  to  the  voters  on  the  outside.  Every  time  a  colored  voter's  name  would 
be  called  out  he  would  go  round  to  Stokes,  the  colored  judge,  and  help  him  to  find  the 
name.  Every  time  a  white  voter  wanted  the  constitution  read  to  him  he  objected  and 
made  a  short  speech.  Mr.  Belvin  would  challenge  a  vote,  and  he  said  if  he  did  it 
again  he  would  have  him  arrested.  Every  now  and  then  he  would  call  Stokes  a  block- 
headed  fool,  because  he  could  not  find  the  names  fast  enough  for  him.  When  Cottrell 
would  read  the  constitutional  law  he  would  tell  him  if  he  kept  on  doing  it  he  would 
have  him  punished  for  it.  He  made  several  other  remarks  there,  talking  and  blowing. 
I  can't  tell  you  one-half  he  said  and  did. 

28th.  Ques.  (By  same.)  Where  at  the  window  did  Mr.  Belvin  stand — on  the  side 
where  the  colored  voters  were,  or  on  the  side  where  the  white  men  voted  ? — Ans.  On 
the  side  where  the  white  men  voted. 

29th.  Ques.  (By  same.)  About  how  much  of  the  window  did  he  occupy? — Ans. 
He  occupied  about  6  or  8  inches  generally.  Sometimes  he  had  his  whole  body  in  front 
of  the  window,  and  then  again  he  would  have  nothing  but  his  head  in  the  window. 

30Lh.  Ques.  (By  same.)  When  a  white  voter  came  up  would  Mr.  Belvin  step  aside 
and  let  him  vote,  or  force  the  voter  to  go  around  him  ? — Ans.  He  would  shove  him 
around  in  front  of  him. 

Slst.  Ques.  (By  same.)  State  as  well  as  you  can  what  Mr.  Duncan  would  say  when 
he  would  make  a  speech  to  the  voters  on  the  outside. — Ans.  He  would  say,  "Stand 
back,  men  ;  for  God's  sake  don't  shove.  You  are  wasting  your  own  time,  and  I  am  in 
here  to  jjrotect  you;  "  and  wind  up  by  saying,  "Now  stand  back." 

32nd.  Ques.  (By  same.)  To  whom  was  Mr.  Duncan  speaking — to  colored  or  white 
men — when  he  urged  them  to  stand  back? — Ans.  Speaking  to  the  colored  men. 


WADDILL    VS.    WISE.  237 

33d.  Ques.  (By  same.)  Why  did  he  go  around  to  help-  Stokes  to  find  the  names; 
was  Stokes  slow  or  rapid  in  finding  the  names  on  the  registration  book  of  the  colored 
voters  ? — Ans.  He  said  Stokes  was  a  blockhead  and  too  slow  for  that  place. 

34th.  Ques.  (By  same.)  You  have  stated  what  Mr.  Duncan  said.  State  of  your 
own  knowledge,  if  you  can,  whether  Stokes  was  slow  in  finding  the  names. — Ans. 
He  was  very  slow. 

35th.  Ques.  (By  same.)  Was  Mr.  Duncan  cool  or  excited  on  that  day  ? — Ans.  He 
was  very  much  excited  most  all  day. 

36th .  Ques.  (By  same. )  Did  Mr.  Duncan  speed  the  finding  of  the  names  by  Stokes, 
or  did  he  interfere  with  him  and  delay  him  ? — Ans.  I  think  he  interfered  with  him  very 
much. 

37th.  Ques.  (By  same.)  Did  Mr.  Duncan,  when  so  looking  for  the  names  with 
Stokes,  always  look  under  the  right  letter  for  the  name  ? — Ans.  No,  sir. 

38th.  Ques.  (By  same.)  Stateanyinstance  that  you  can  recollect  where  he  looked 
under  the  wrong  Tetter  ? — Ans.  He  was  looking  for  a  man  named  Kennedy  under  the 
letter  C.  Stokes  was  looking  for  the  name  and  Mr.  Duncan  was  looking  for  the  street 
and  number.  He  was  looking  for  a  man  named  Scott,  and  he  had  the  letter  C  ;  he  was 
looking  for  a  man  named  Mimms,  and  he  had  the  letter  N.  In  this  case  he  never  did 
find  him  ;  he  sent  the  man  away  without  voting. 

39th.  Qaes.  (By  same.)  Are  you  certain  that  the  names  of  the  voters  were  Ken- 
nedy, Scott,  and  Mimms? — Ans.  Yes,  sir;  I  have  a  memorandum  of  them. 

40th.  Ques.  (By  same.)  You  have  said  that  every  time  a  white  voter  wanted  the 
constitution  read  to  him  Duncan  would  object  and  make  a  short  speech.  To  whom 
would  he  make  a  speech ;  to  Mr.  Cottrell  or  to  the  voter? — Ans.  He  would  make  it  to 
Mr.  Cottrell. 

4l8t.  Ques.  (By  same.)  When  a  voter  was  challenged  by  Mr.  Belvin  or  any  other 
Democratic  challenger,  would  Duncan  allow  him  to  be  sworn  without  objection  or 
discussion  ? — Ans.  No,  sir. 

42nd.  Ques.  (By  same.)  State,  as  weU  as  you  can,  what  objection  or  remark  he 
would  make. — Ans.  He  would  say  that  they  had  no  right  to  swear  him ;  that  he  had 
a  right  to  vote ;  that  he  would  look  into  the  matter  hereafter. 

43rd.  Ques.  (By  same.)  Was  it  on  such  occasions  that  he  threatened  to  have  Mr. 
Belvin  arrested  ? — Ans.  Yes,  sir. 

44th.  Ques.  (By  same.)  Did  he  threaten  to  have  any  one  else  arrested?  If  so, 
whom  ? — Ans.  Yes,  sir ;  myself. 

45th.  Ques.  (By  same.)  For  what? — Ans.  Because  I  objected  to  a  man's  voting 
without  being  sworn,  and  that  man  he  would  not  let  vote  because  we  wanted  him 
sworn ;  he  turned  him  away.  I  had  his  name  on  the  memorandum  I  have  alluded  to 
above,  but  I  have  misplaced  it,  and  though  I  have  looked  for  it  I  can't  find  it. 

46th.  Ques.  (By  same.)  Had  the  man  whom  you  objected  to  being  voted  without 
being  sworn  been  challenged  ? — Ans.  Yes,  sir. 

47th.  Ques.  (By  same.)  You  have  spoken  of  Mr.  Cottrell  reading  something  about 
the  right  to  vote  on  the  constitution.  Can  you  tell  about  the  substance  of  what  he 
would  say  ? — Ans.  That  they  had  a  right  every  so  many  years  to  vote  on  the  consti- 
tution, whether  they  wanted  it  changed  or  let  it  stand  as  it  was. 

48th.  Question.  (By  same.)  Several  witnesses  called  on  behalf  of  Judge  Waddill 
testified  that  Mr.  Belvin  delayed  the  voting  by  asking  such  unnecessary  questions  as 
the  following  :  "  As  to  who  owned  the  voter  before  the  war?"  "  Whether  he  had 
any  children?"  "And  how  many  he  had?"  State  whether  or  not  you  heard  Mr. 
Belvin  or  any  Democratic  challenger  ask  any  such  questions  ? — Ans.  1  did  not. 

49th.  Ques.  (By  same.)  Sitting,  as  you  sayyoudid,  directly  in  front  of  the  window, 
were  you  in  such  a  position  and  close  enough  to  the  window  to  generally  hear  the 
questions  asked  of  the  voters  by  the  Democratic  challengers  ? — Ans.  Yes,  sir. 

50th.  Ques.  (By  same.)  Do  you  remember  what  were  the  grounds  upon  which  the 
challengers  challenged  the  voters ;  if  so,  mention  such  as  you  remember? — Ans.  They 
challenged  them  on  the  ground  that  they  were  disfranchised  by  the  police  and  hust- 
ings courts,  and  some  times  they  had  the  wrong  No.  of  their  house  or  street. 

51st.  Ques.  (By  same.)  State  whether  or  not  the  conduct  of  Mr.  Duncan,  which 
you  have  described  above,  delayed  the  voting?— Ans.  Yes,  sir;  very  much. 

52nd.  Ques.  (By  same.)  Were  any  complaints  made  during  that  day  by  any  par- 
ties of  the  conduct  of  Mr.  Duncan  ?  And,  if  so,  were  they  by  the  white  or  colored 
men  ? — Ans.  You  could  hear  the  colored  men  out  there  in  the  litie  say,  when  he  came  to  the 
ivindow,  that  if  he  did  not  come  there  so  often  tliat  they  oould  get  more  votes  in  ;  that  he  took 
up  so  much  time  getting  the  votes  in. 

5.3rd.  Ques.  (By  same.)  You  have  stated  that  Mr.  Duncan  would  object  to  Mr. 
Cottrell  explaining  to  the  voter  his  right  to  vote  upon  the  constitutional  question. 
Did  or  did  not  such  objection  consume  time  ? — Ans.  Taking  it  as  a  whole,  it  did  con- 
sume some  time. 

54th.  Ques.  (By  same.)  You  have  stated  that  when  a  Democratic  challenger 
would  challenge  a  vote  Mr.  Duncan  would  object  and  insist  that  he  had  no  right  to 


238  WADDILL   VS    WISE. 

challenge  him.     State  whether  or  uot  such  ohjectious  also  consumed  time. — Ans.  Yes, 
sir. 

55th.  Ques.  (By  same.)  State  whether  or  not  the  qnestionH  asked  by  the  Demo- 
cratic challengers  were  frivolous  and  unnecessary,  such  as  1  alluded  to  in  the  48th 
question  ;  if  not,  state  the  nature  of  the  questions  asked  as  well  as  you  can  recollect 
them? — Ans.  They  were  not  questions  of  the  nature  reiVrred  to  in  your <8th  question. 
When  Mr.  Belvin  challenged  a  vote  he  would  say,  "Were  uot  you  convicted  in  the 
police  court  ?"  the  voter  would  say,  "  No,"  then  he  would  ask  to  have  him  8«-orn. 
He  would  not  every  time  say  the  police  court,  he  would  sometimes  say  the  hustings 
court.    He  would  then  sometimes  ask  a  voter  where  he  lived. 

56th.  Ques.  (By  same.)  When  would  he  ask  a  voter  whether  he  had  been  con- 
victed in  the  police  or  hustings  conrt  ?  Would  it  be  when  he  had  challenged  the 
voter  on  the  ground  of  being  disfranchised,  or  because  the  voter  did  not  give  the 
number  of  his  residence  as  registered  ? — Ans.  When  be  would  ask  him  if  ho  had  been 
in  the  police  or  hustings  court,  he  would  fiud  his  name  on  the  disfranchised  list.  If 
he  asked  hira  about  the  street  and  number  it  would  be  when  he  had  given  a  diferent 
number  from  the  one  on  the  registration  book  or  the  book  be  had. 

57th.  Ques.  (By  same.)  Did  Mr.  Smith,  when  he  challenged  in  the  place  of  Mr. 
Belvin,  did  he  ask  any  of  the  frivolous  questions,  or  did  he  ask  questions  similar  to 
those  that  you  have  said  Mr.  Belvin  asked  ? — Ans.  He  asked  questions  similar  to  those 
Mr.  Belvin  asked. 

58th.  Ques.  (By  same.)  Several  of  the  witnesses  who  have  testified  in  behalf  of 
Judge  Waddill  have  stated  that  Mr.  Cottrell,  the  one  who  received  the  ballots,  greatly 
hindered  and  delayed  the  voting.  Did  you  see  Mr.  Cottrell  during  the  entire  day  do 
anything  to  hinder  or  delay  the  voting  ?     And,  if  so,  state. — Ans.  No,  sir. 

59th.  Ques.  (By  same.)  Did  you  see  Mr.  Cottrell  during  th«i  day  do  anything  to 
aid  any  particular  voters  to  get  in  their  ballots  after  they  had  been  challenged  ?  If 
so,  state  it. — Ans.  Yes,  sir;  on  several  occasions  Mr.  Belvin  would  challenge  colored 
voters  and  Mr.  Cottrell  would  say,  "I  know  he  is  all  tight,"  and  would  vote  him 
without  swearing  him. 

Here  again  we  find  this  witness  testifying  to  the  same  condition  of 
affairs  as  that  referred  to  by  the  i)revious  witness  and  showing  tiiat  the 
colored  voters  themselves  complained  that  this  Kepublican  Federal 
supervisor  was  delaying  the  voting. 

It  may  be  said  that  Stokes,  the  colored  Eepublicau  judge,  was  uot 
competent  to  take  charge  of  the  registration  book.  As  we  have  said, 
he  was  an  intelligent  man  and  a  merchant,  and  had  acted  as  judge  on 
other  occasions,  and  the  colored  registration  book  was  put  in  his  charge 
at  the  suggestion  of  the  Republican  Federal  Supervisor  Duncan,  as 
well  as  Cottrell,  one  of  the  Democratic  judges. 

W.  L.  TlMBERLAKE,  p.  1091. 

4th.  X  Ques.  (By  same.)  Were  yon  anxious  that  all  colored  men  entitled  to  vote 
should  get  in  their  vote  ? — Ans.  Yes,  sir;  I  think  that  every  man  entitled  to  vote  should 
get  it  in  if  possible. 

5th.  X  Ques.  {By  same.)  How  did  this  colored  man,  Bedford  Stokes,  compare  iv  the 
matter  of  intelligence  and  education  with  yourself 'i — Ans.  I  don't  knoiv  ;  he,  might  have  as 
much  sense  as  I  have  got.    I  think  his  education  is  very  good  ;  he  could  read  and  tvriie. 

6th.  X  Ques.  (By  same.)  Then  how  did  you  construe  his  looking  in  the  C's  for 
Kennedy,  in  the  C's  for  Scott,  and  in  the  N's  for  Mimms  when  you  at  once  detected  the 
mistake  and  went  to  help  him  ? — Ans.  Because  Mr.  Duncan  so  much  confused  him  that 
he  did  not  know  what  he  was  doing  ;  if  Mr.  Duncan  had  not  interfered  with  hira  he 
would  have  gotten  on  about  three  times  as  fast. 

7th.  X  Ques.  (By  same. )  Then  what  did  you  mean  in  your  answer  to  my  first  ques- 
tion, that  you  would  have  helped  Stokes  in  other  cases  than  Kennedy's  had  not  Mr. 
Duncan  been  there  to  help  him  ? — Ans.  Because  when  Mr.  Duncan  was  with  him  he 
had  hold  of  one  side  of  the  book  and  Stokes  had  hold  of  the  other,  and  there  was  no 
chance  for  me  to  get  to  the  book  to  help  him. 

8th.  X  Ques.  (By  same.)  But  you  have  said  that  Mr.  Duncan  was  running  all  over 
the  room  and  continually  making  speeches  at  the  window  to  the  crowd  ;  why  did  you 
not  then  help  Stokes  f — Ans.  Because  Stokes  was  not  looking  for  anybody's  name  then. 

9th.  X  Ques.  (By  same.)  Then,  do  I  understand  j'ou  that,  with  the  exception  of 
the  time  you  helped  to  find  Kennedy's  name,  Mr.  Duncan  assisted  Stokes  in  finding  the 
names  of  voters  T — Ans.  Yes,  sir;  that  time  Mr.  Duncan  was  arguing  with  Belvin; 
that  was  the  only  chance  I  had  to  help  him  during  the  day. 

JOth.  X  Ques.  (By  same.)  Did  anybody  help  you  to  find  the  names  in  your  book? — 
Ans.  No,  sir ;  only  one  time  Mr.  Duncan  started  towards  me  to  help  me,  but  1  found 
iihe  name  oefore  be  reached  me. 


WA.DDILL   VS.    WISE.  239 

11th.  X  Ques.  (By  same.)  And  did  you  find  the  names,  with  that  exception,  bo 
quickly  that  you  needed  no  assistance  with  your  book  ? — Ans.  yes,  sir. 

12th.  X  Ques.  (By  same.)  Which  book  did  you  have  at  that  precinct  in  the  May 
election  last  year  ? — Ans.  The  colored  book. 

IMh.  X  Ques.  {By  same.)  How  was  it  and  at  whose  suggestion,  that  you  took  the  white 
took  at  the  election  last  November,  and  Bedford  Stokes  the  colored  one  ? — Ans.  At  the  sug- 
gestion of  Mr.  Cottrell  and  Mr.  Duncan. 

14th.  X  Ques.  (By  same.)  Could  you  not  have  found  the  names  upon  the  colored 
book  much  quicker  than  Stokes  ? — Ans.  If  I  had  had  to  undergo  what  Stokes  did,  I 
don't  think  I  would  have  found  them  as  quick  as  he  did.  Mr.  Duncan  talking  and 
whirling  his  hands  around,  I  know  I  would  not  have  found  them  as  quick  as  he  did. 

15th.  X  Ques.  (By  same.)  Then,  if  you  found  this  delay  going  on  by  reason  of  Mr. 
Duncan's  conduct,  as  you  have  stated,  why  did  you  not  propose  to  cbauge  books  with 
Stokes,  since  Mr.  Duncan  never  interfered  with  you  ? — Ans.  I  thought  about  asking 
him  two  or  three  times,  and  the  thought  struck  me  that  if  I  took  the  colored  book  that 
Mr.  Duncan  would  come  around  and  do  the  same  thing  to  me  that  he  did  to  Stokes, 
and  that  would  have  ended  in  a  big  fight,  and  I  did  not  want  to  have  any  of  that 
'round  there  that  day. 

16th.  XQues.  (By  same.)  Who  would  have  fought  and  what  for? — Ans.  Mr.  Dan- 
can  and  myself  would  bave  fought  if  he  had  bothered  me  as  much  as  he  did  Stokes 
that  day. 

17th.  X  Ques.  (By  same.)  You  have  said  that  some  two  or  three  hundred  men  were 
shut  out  at  the  close  of  the  polls ;  do  you  mean  to  say  that  the  reason  these  men  got  no 
opportunity  to  vote  was  because  of  delays  caused  by  Mr.  Duncan  ? — Ads.  Not  alto- 
gether by  Sir.  Duncan. 

18th.  XQues.     (By  same.)    Do  you  mean  principally  by  him  ? — Ans.  Yes,  sir. 

19th.  XQues.     (By  same.)    And  by  whom  else? — Ans.  By  Stokes  and  Belvin. 

20th.  X  Ques.  (By  same.)  How  could  Stokes  cause  delay  if  he  was  being  hindered 
by  Duncan  as  you  have  stated  ? — Ans.  By  not  finding  the  names. 

21st.  XQues.  (By  same.)  But  you  have  said  you  could  not  have  found  the  names  as 
fast  as  Stokes  if  Duncan  bad  bothered  you  as  he  did  him.  How,  then,  did  Stokes  delay 
the  voting? — Ans.  I  consider  that  both  Stokes  and  Duncau  delayed  it,  because  Stokts 
was  looking  for  the  names  and  could  not  find  them,  and  that  fretted  Mr.  Duncau  and 
he  would  talk  to  Stokes  and  that  would  bother  him,  and  he,  Duncan,  was  looking  for 
the  number  and  he  could  not  find  that  either,  and  I  consider  that  both  of  them  delayed 
time  in  that  way. 

22nd.  X  Ques.  (By  same.)  Did  Mr,  Cottrell  and  yourself,  forming  a  majority  of 
the  board  of  judges,  use  any  means  whatever  to  check  the  delays  and  ob-tructions  of 
which  you  have  spoken,  so  that  the  hundreds  that  did  not  vote  might  be  enabled  to  do 
80  ? — Ans.  Yes,  sir;  Mr.  Cottrell  said  to  Mr.  Duican  several  times,  "Take  a  chair  and 
set  down,  and  we  will  get  along  much  faster  ;  don't  run  about  so  much  and  talk  so 
much."    That  seemed  to  make  him  worse  than  ever. 

We  now  quote  from  the  deposition  of  H.  M.  Smith,  jr.,  page  1153. 

22nd.  Ques.  (By  same.)  It  has  been  charged  that  Mr.  Cottrell  delayed  theelection  by 
waiting  after  Stokes  had  found  the  name  ofthe  voter  on  the  colored  registration  book 
for  Belvin  to  find  the  same  name  on  the  copy  he  had  ;  state  your  observations  as  to  that 
course  of  procedure. — Ans.  There  is  not  an  iota  of  truth  in  the  statement,  so  far  as 
my  observation  went,  and  I  was  very  attentive.  Mr.  Stokes  was  so  How  in  finding  the 
name  that  Mr.  Duncan,  a  distinguished  Republican  leader  and  the  supervisor  at  that  pre- 
cinct that  day,  was  assisting  him  to  find  the  names  every  five  minutes  of  the  day.  Mr. 
Allen  and  Mr.  Eockecharlie  and  Mr.  Powell  were  assisting  Mr.  Belvin  to  find  the  names 
on  his  own  book,  by  looking  over  his  shoulder  and  running  theireyedown  the  names, 
that  he  could  not  have  been  slow  if  he  had  wanted  to,  so  indefatigable  were  they  in 
their  exertions  to  assist  him.  The  whole  contest  was  very  pleasant  and  we  raised  no 
objection  to  their  having  free  access  to  our  book  to  see  the  ground  of  our  challenge, 
and  everything  else.  I  will  state  further,  as  it  occurs  to  me,  that  we  put  the  chal- 
lenge book,  the  disqualified  list,  and  what  other  information  we  had  in  the  hands  of 
different  parties,  so  that  they  might  be  all  looking  at  the  same  time,  so  as  not  to  cause 
any  unnecessary  delay. 

29<A.  Ques.  (By  same.)  State  what  teas  Mr.  Duncan^s  conduct  during  the  last  elec- 
tion day. — Ans.  Mr.  Duncan,  who  was  the  Federal  supervisor  for  the  Republican  party 
at  this  precinct,  very  greatly  exceeded  his  powers  and  duties  as  supervisor,  it  struck  me. 
He  was  the  most  violent  and  aggressive  partisan  that  I  saw  present;  he  seemed  to  take 
charge  of  the  whole  poll  over  Republicans  and  Democrats  alike — spurring  on  and  assist- 
ing the  Republicans  in  every  conceivable  manner,  making  speeches  to  them,  assisting  the 
Republican  judge  to  find  the  names,  holding  whispered  conversations  with  the  Republi- 
can challengers  on  the  outside,  and  in  assisting  and  threatening  to  arrest,  and  in  bull- 
dozing the  Democrats. 

30th.  Ques.  (By  same.)  You  have  spoken  of  his  making  speeches ;  to  whom  and  of 


240  WADDILL    VS.    WISE. 

what  nature  were  they  ? — Aim.  They  were  speeches  to  the  uegroes,  heggiug  them  to 
keep  in  line  and  not  to  shove;  not  to  make  any  unnecessary  noise. 

3l8t.  Ques.  (By  same.)  While  he  was  speaking  was  the  voting  going  on  or  sus- 
pended ? — Ans.  Everything  stopped  when  Mr.  Duncan  started. 

32nd.  Ques.  (By  same. )  He  has  heen  descri  bed  as  being  remarkably  cool  and  calm 
that  day;  do  you  coincide  with  that  opinion? — Ans.  On  contrary,  I  think  he  was  the 
most  nervous  and  excited  man  at  the  precinct  that  day. 

33d.  Ques.  (By  same. )  Did  you  hear  any  complaints  made  of  his  conduct  that 
day  ;  if  so,  by  whoinT — Ans.  /  am  quite  sure  that  Mr.  Edgar  Allen  said  more  than  once, 
that  he  was  acting  very  indiscnctly  if  he  wanted  to  facilitate  the  election  ;  and  I  heard  sev- 
eral negroes  say,  speaking  of  Duncan,  "  that  man^sjust  helping  the  Democrats,  that's  what 
he's  doing  ;  he  is  fust  playing  right  into  the  Democrats'  hands,"  or  ivords  to  that  effect. 

Again  we  find  positive  and  direct  evidence  ttiat  Duncan,  'he  Repub- 
lican Federal  supervisor,  was  the  great  obstructionist  at  the  first  pre- 
cint. 

THIRD  PRECINCT. 

We  pass  now  to  the  third  precinct. 

Did  the  judges  of  the  elections  retard  or  obstruct  the  voting?  Did 
they  read  unnecessarily  or  consume  time  in  explanation  of  the  consti- 
tutional convention  question  ? 

William  J.  Stephens,  one  of  the  judges,  p.  1142  : 

30th.  Ques.  (By  same.)  It  has  been  testified  that  you  read  to  several,  if  i.ot  many,  of 
the  white  voters  the  law  as  to  voting  upon  ths  constitutional  convention.  State  tohether  you 
did  or  not. — Ans.  I  did  not. 

31  St.  Ques.  (By  same.)  Did  you  read  anything  except  the  oath  on  that  day? — Ana,  I 
did  not. 

32nd.  Ques.  (By  same.)  Did  you  delay  the  voters  by  intentionally  reading  the  oath  with 
unnecessary  slowness  ? — Ans    1  did  not. 

33rd.  Ques.  (By  same.)  Who  read  any  law  at 

34th.  Ques.  (By  same.)  Who  read  anything  to  the  voters  that  day,  besides  the 
oath,  in  your  hearing  f — Ans.  Mr.  Homer  read  a  paper,  which  was  handed  to  him  by 
Judge  Waddill;  it  was  a  clause  from  the  Federal  Constitution  bearing  on  elections. 

35th.  Ques.  (By  same.)  Was  Mr.  Homer  asked  to  read  the  paper ;  if  so, by  whom? — 
Ans.  He  was  asked  to  read  it  by  Judge  Waddill. 

36th.  Ques.  (By  same.)  Do  you  remember  any  of  the  paper  and  the  substance  of 
it  ? — Ans.  I  know  it  was  bearing  upon  the  election,  but  I  don't  remember  the  word- 
ing of  it. 

37th.  Ques.  (By  same.)  Do  you  know  why  Mr.  Homer,  U.  S.  supervisor,  was  asked 
to  read  that  paper ;  is  he  a  particularly  good  reader  ? — Ans.  I  do  not ;  he  is  a  very 
indifferent  reader. 

3»th.  Ques.  (By  same.)  Where  was  Judge  Waddill  when  the  paper  was  being 
read  ? — Ans.  About  in  front  from  Mr.  Homer  and  a  few  feet  back  from  the  window,  as 
well  as  I  remember. 

39th.  Ques.  (By  same.)  Do  you  remember  whether  the  paper  read  by  Mr.  Homer 
said  anything  a&out  punishing  any  one  under  the  U.  S.  law  ? — Ans.  My  impression 
is  that  it  did. 

40th.  Ques.  (By  same.)  Do  you  remember  whether  Judge  Waddill  said  anything 
to  Mr.  Homer  when  he  handed  him  the  paper  ;  if  so,  what  was  it  ? — Ans.  I  don't  re- 
member distinctly,  but  I  think  he  said  read  this  for  the  benefit  of  the  voters. 

It  seems  from  this  deposition  that  the  contestant  himself  was  delay- 
ing the  voting  by  having  papers  read  to  the  voters  by  Horner,  the  Re- 
publican Federal  Supervisor. 

The  Democratic  judge  read  nothing  except  the  oath  when  adminis- 
tered to  a  voter. 

William  J.  O'Neill,  one  of  the  clerks,  page  1139 : 

17th  Ques.  (By  same.)  State  what  teas  the  conduct  of  Mr.  W.  J.  Stephens  during  the 
day. — Ans.  From  what  I  could  see  of  him  he  desired  every  man  wlio  was  entitled  to  vote  to 
do  so. 

18th.  Ques.  (By  same.)  State  whether  you  saw  anything  in  his  conduct  tending  to 
hinder  or  delay  the  voting. — Ans.  I  did  not;  he  did  all  in  his  power  to  vote  every  man  be- 
fore sunset. 

19th.  Ques.     (By  same.)    Did  you  notice  Mr.  Homer  during  the  day  ? — Ans.  I  did. 

?Oth.  Ques.     (By  same.)     State  as  well  as  you  can  what  was  Mr.  Homer's  conduct  dwr- 


WADDILL    VS.    WISE.  241 

ing  the  earlier  part  of  that  day. — Arts.  Mr.  Homer  demanded  to  l'7ioio  vpon  tvhat  grounds 
was  the  votes  challenged. 

2l8t.  Ques.  (Bv  same.)  D'ldhe  dispute  the  right  of  the  challengers  to  challenge  f—  Ans. 
In  some  caces  he  did. 

22nd.  Qnes.  (By  same.)  When  he  so  denied  the  right  to  challenge,  did  that  end  the 
matter,  or  did  he  raise  a  discussion  between  himself  and  the  challenger? — A.  It  very  often 
raised  a  discussion  between  him  and  the  challenger. 

2.3rcT.  Ques.  (By  same.)  Did  such  discussion  consume  time  or  speed  the  voting  f — Ans. 
It  consumed  about  one  or  two  minutes  sometimes. 

W.  C.  Wilkinson,  page  1201 :       i 

2nd.  Qus.  State  if  you  were  at  either  of  the  precincts  in  Jackson  ward  on  the  day 
of  election;  if  so,  which  one? — Ans.  I  was  at  the  3rd  precinct,  Jackson  ward. 

5th.  Ques.  Did  you  observe  any  disorder  around  the  polls  there  that  day;  if  so, 
state  by  whom, — Ans.  I  don't  consider  there  was  any  disorder  there  that  day. 

6th.  Qus.  Did  you  observe  how  the  election  was  conducted  ? — Ans.  I  did.  It  was  as 
orderly  and  quiet  as  any  lever  saw. 

7th.  Qus.  How  often  have  you  attended  elections  in  that  ward? — Ans.  Several 
times. 

8th.  Qus.  The  contestant.  Judge  Waddill,  in  his  notice  of  contest  alleges  that  cer- 
tain voters  at  the  3rd  precinct  of  Jackson  ward  were  prevented  from  voting  by  the 
connivance  of  the  judges  of  election  there,  policemen  of  the  city,  and  deputy  United 
States  marshal  and  others.  Now  will  you  state  whether  the  policemen  of  this  city  at 
that  precinct  did  any  act  to  prevent,  delay,  or  hinder  any  voter  from  casting  his  bal- 
lot ? — Ans.  None  to  my  knowledge  ;  to  the  contrary,  I  think  each  and  every  one  did 
all  they  could  to  i)romote  the  election.  I  do  not  think  there  was  an  arrest  made  at 
that  precinct  that  day  or  one  attempted  ;  if  there  was  I  was  not  aware  of  it. 

9th.  Ques.  State  what  was  the  conduct  of  the  judges  of  the  election  there  and  of  the 
deputy  United  States  marshals  so  far  as  they  fell  under  your  observation. — Ans.  All 
fair  and  just  as  far  as  I  could  see. 

Henry  W.  Euff,  judge,  page  1128,  testiiied: 

2ud.  Ques.  (By  same.)  What  official  position  did  you  hold  on  the  6th  day  of  last 
November? — Ans.  I  was  judge  of  election  at  the  3rd  precinct,  Jackson  ward,  and  held 
the  colored  registration-book. 

3rd.  Ques.  (By  same.)  State  who  was  in  the  polling  room  during  that  election  day 
at  that  precinct. — Ans.  The  judges  were  W.  J.  Stephens,  S.  S.  Richardson,  the  colored 
judge,  and  myself;  the  clerks  were  W.  J.  O'Neil  and  W.  S.  Jenkins,  and  the  super- 
visors were  Thomas  Hill  and  John  J.  Homes,  the  Republican  supervisor. 

4th.  Ques.  (By  same.)  Were  you  there  during  the  entire  day  ? — Ans.  Yes,  sir. 

5th.  Ques.  (By  same.)  Who  held  the  registration-book  for  white  voters ? — Ans.  S. 
S.  Richardson,  the  colored  judge. 

6th.  Ques.  (By  same.)  State  what  duties  were  performed  by  Mr.  Stephens. — Ans. 
He  was  the  one  to  receive  the  ballots,  ask  the  name  and  call  it  out,  and  place  the 
ballot  in  the  box. 

7th.  Ques.  (By  same.)  State  whether  you  saio  Mr.  Stephens  do  any  act  to  delay  or 
hinder  the  voters  from  voting, — Ans.  No,  sir;  I  did  not. 

8th.  Ques.  (By  same.)  State  as  to  your  conduct  during  the  day. — Ans.  I  voted  them 
all  that  were  entiMed  to  vote,  I  found  all  the  names,  ivith  the  exception  of  one  party  whose 
name  I  could  not  find;  I  looked  for  his  name  three  or  four  times  ;  I  donH  remember  his 
name  at  this  time  ;  Mr.  O^Neil  helpedme  to  look  for  his  name  also  ;  I  don't  think  it  was  in 
the  books. 

9th.  Ques.  (By  same.)  State  whether  or  not  you  consumed  more  time  than  was  neces- 
sary in  finding  the  names  of  the  colored  voters. — Ans.  No,  sir  ;  I  did  not.  I  voted  them  as 
fast  as  I  found  their  names.  I  put  the  regular  questions  to  them.  I  ask  them  where  they 
lived  and  such  as  that. 

18th.  Ques.  {By  same.)  What  tvas  the  conduct  of  Mr.  Holmes,  the  Bepublican supervisor, 
during  that  day  ? — Ans.  It  was  right  bad.  He  objected  to  four  or  five  things  there  about 
challenging  votes. 

19th.  Ques.  (By  same.)  Did  you  see  him  do  anything  else;  if  so,  please  stateit^ — Ans.  He 
got  up  there  and,  read  some  law  he  got  from  Mr.  Pleasants,  I  think  ;  this  took  up  about  five 
or  ten  minutes  ;  this  was  when  Judge  Waddill  was  present. 

20<A.  Ques.  (By  same.)  You  Jiave  stated  that  he  objected  to  voters  being  challenged;  do  you 
mean  that  he  disputed  the  right  of  the  challengers  to  challenge  votes^ — Ans.  No;  when 
anybody  was  on  the  disfranchised  list  and  the  challengers  would  challenge  him,  Mr.  Holmes 
would  say  that  that  teas  not  the  man,  or  something  like  that. 

2l8t.  Ques.  (By  same.)  Do  you  knowhoxo  Mr.  Holmes  could  tell  ichether  the  man  offei'ing 
to  vote  was  the  party  who  was  disqualified? — Ans.  I  suppose  he  would  take  the  votcr^s  xeord 
for  it  after  he  would  sivear  him. 

2'2nd.  Ques.  ( By  same. )  Do  you  know  whether  he  had  any  other  means  for  knoxcing  him'i — • 
Ans.  Xn.sir;   F  do  not. 

23rd.  Ques.  (Hysame.)  How  long  have  you  lived  in  Jackson  ward'i — Ans.  About  2^  years. 

n.  Mis.  137 IG 


242  WADDILL    VS.    WISE. 

It  appears  from  this  evidence  that  tbe  l)emocratic  judges  were  guilty 
of  no  improper  conduct ;  that  they  were  as  expeditious  as  possible,  and 
that  whatever  unusual  delay  there  may  have  been  was  caused  by  the 
Kepublican  Federal  Supervisor  Horner  and  by  the  contestant  himself. 

FOURTH  PRECINCT. 

So  far  as  the  fourth  precinct  is  concerned  there  is  no  evidence  what- 
ever worthy  of  consideration  attacking  the  conduct  of  the  judges. 
There  is  evidence  to  show  that  the  Democratic  Federal  supervisor  was 
drunk  and  was  disposed  to  give  trouble,  but  no  evidence  that  he  in  any 
way  prevented  any  one  from  voting  or  that  he  obstructed  the  reception 
of  the  ballots. 

Having  now,  we  think,  successfully  disposed  of  the  charge  against 
the  Democratic  judges  of  election  at  the  three  precincts  in  Jackson 
ward,  not  only  by  the  judges  themselves,  but  by  the  clerks  and  other 
witnesses,  and  shown  that,  whether  intentionally  or  not,  the  Republican 
Federal  supervisors  at  the  various  precincts,  and  the  Republican  judge 
at  one,  caused  and  promoted  delay  and  hindered  and  obstructed  the 
voting,  we  pass  to  other  questions. 

CHARACTEB  OF   THE  VOTERS  IN  JACKSON  WARD. 

The  colored  vote  in  this  ward  is,  as  compared  with  the  white  vote,  at 
least  three  to  one. 

The  colored  registration-books  contain  the  same  names  many  times. 

It  is  a  well-known  fact  that  negroes  are  hard  to  identify,  and  that 
it  requires  perfect  acquaintance  and  long  familiarity  with  them  to  dis- 
tinguish one  from  another. 

Then  when  a  man  presented  himself  at  the  polls  and  his  name  ap- 
peared on  the  registration  books  many  times,  it  was  absolutely  neces- 
sary to  closely  inquire  as  to  his  identity  in  order  that  his  name  might 
be  checked  on  the  registration-book,  so  as  to  prevent  the  reception  of 
an  illegal  vote  as  well  as  fraud  upon  some  other  voter. 

Again,  under  the  laws  of  Virginia,  conviction  of  petit  larceny  or  fel- 
ony works  a  disfranchisement  of  the  convict.  By  reference  to  the  record 
it  will  be  found  that  the  names  of  over  2,000  colored  men  stand  upon 
the  disfranchised  lists  of  the  police  and  hustings  courts  of  the  city  of 
Richmond. 

Under  the  statute  the  clerks  of  the  courts  are  required  to  furnish  the 
judges  of  election  with  these  disfranchised  lists. 

An  examination  of  these  lists,  which  were  in  the  hands  of  the  judges 
of  election  in  Jackson  ward,  as  well  as  other  wards,  will  show  that  about 
ninety  names  appear  about  five  hundred  times  on  them,  or  more  than 
five  times  each  on  an  average,  while  very  many  more  appear  two  and 
three  times  each. 

The  judges  of  election  then,  in  order  to  protect  the  ballot-box  from  the 
votes  of  thieves  and  felons,  were  compelled  to  look  carefully  to  these 
lists. 

Not  only  was  it  the  province  and  duty  of  the  judges  o  election  to 
closely  scrutinize  the  registration  books  and  the  disfranchised  lists,  but 
it  was  the  right  of  the  Democratic  challengers,  not  only  in  order  to 
project  their  party  against  such  votes,  but  as  good  citizens  it  was  their 
duty  to  guard  the  ballot-box  against  pollution,  by  vigilantly  observing 
that  no  man  not  properly  registered  and  that  no  man  who  had  been 
disfranchised  should  exercise  the  high  privilege  of  voting. 


WADDILL   VS.    WISE.  243 

This,  then,  leads  to  the  inquiry  whether  the  Democratic  challengers 
were  guilty,  as  charged,  of  delaying  and  hindering  voters  by  unreasona- 
ble challenges  and  unnecessary  and  frivolous  questions. 

B.  C.  Stokes,  Republican  judge,  testified : 

20  Q.  Repeat  as  near  as  you  can  the  kind  of  questions  they  (the  Democratic  chal- 
lengers) would  ask  them  (the  voters)? — A.  How  old  are  you;  what  is  your  age; 
where  do  you  live;  what  street;  number;  whether  they  lived  in  Chesterfield  or 
Henrico  Counties;  how  long  they  had  been  living  in  the  State. 

B.  C.  SCHUTTE,  clerk,  testified  : 

One  of  the  principal  grounds  of  challenge  was  as  to  their  moving  from  one  place  to 
another ;  the  next  ground  was  they  had  a  printed  list  of  the  disqualified  voters  from 
the  hustings  and  police  courts  of  the  city. 

The  Democratic  challengers  did  no  more  challenging  than  they  ought  to  have  done 
on  this  occasion. 

Spencer  Johnson  (colored),  witness  for  contestant,  testified  :  He  did  not  see  any- 
body obstructing  the  voting  that  day. 

OsBOKN  Holms  (colored),  witness  for  contestant,  testified  that  the  questions  asked 
were  as  to  his  age,  residence,  and  occupation,  and  whether  he  had  been  disfranchised. 

Wesley  Harisis  (colored),  witness  for  contestant,  testified :  He  did  not  see  the 
Democrats  do  anything  that  he  thought  was  wrong ;  that  he  had  been  living  in  the 

Erecinct  fifteen  years,  and  that  to  his  knowledge  the  elections  had  been  fairly  and 
onestly  conducted. 

George  Duncan  (colored),  witness  for  contestant,  testified  : 

Ques.  Did  you  see  the  Democrats  do  auything  that  they  ought  not  to  have  done  ? — 
Ans.  Not  a  thing,  sir;  not  a  thing  in  the  world. 

Joseph  Baker  (colored),  witness  for  contestant,  testified  : 

Ques.  Was  there  any  obstructions  or  molesting  of  voters  ? — Ans.  I  did  not  see  any. 

Gilliam  Jones  (colored),  witness  for  contestant,  testifies: 

Ques.  On  what  ground  were  you  challenged  ? — Ans.  Because  they  said  I  did  not 
have  the  right  number.  I  was  registered  at  415  Baker  street  and  gave  515  West 
Baker  street. 

James  R.  Gross  (colored),  witness  for  contestant,  testified: 

10th.  Ques.  Were  you  challenged  by  any  one  on  the  outside? — Ans.  No,  sir.  I  of- 
fered to  swear  by  my  ballot,  and  Mr.  Belvin  told  me  to  get  away ;  that  mj'  name  was 
not  on  the  book. 

11th.  Quis.  Was  he  on  the  inside  ? — Ans.  No,  sir;  he  was  standing  right  by  me. 

12th.  Ques.  In  answer  to  a  questioD  put  to  you  by  Mr.  Allan  you  said  a  gentleman 
inside  the  room  challeuged  your  vote.  How  is  it  that  you  now  tell  us  that  Sir.  Belvin 
on  the  outside  told  you  that  your  name  was  not  on  the  book  and  to  stand  aside  ? — Aus. 
When  I  went  to  the  window  to  hand  my  ballot  to  the  gentleman  he  takes  my  ballot 
in  his  hand.  Some  one  inside  says  my  name  wan't  there  on  the  book,  and  that  I  did 
not  belong  to  that  number.  I  asked  them  please  to  swear  me ;  then  Mr.  Belvin  told 
me  to  get  away,  my  name  was  not  there. 

W.  C.  Wilkinson  testified : 

10th.  Qus.  Did  you  recognize  any  persons  there  who  were  acting  as  Democratic 
chflllengers ;  if  so,  give  their  names? — Ans.  Mr.  Glazebrook,  I  don't  know  his  first 
name;  Mr.  C.  V.  Meredith,  I  think;  Mayor  John  Hunter,  and  several  others,  I  can 
not  recollect  their  names.     I  think  Rand  Tucker  was  there  awhile. 

11th.  Qus.  Were  those  gentlemen  there  during  the  whole  of  the  day  of  election? — 
Ans.  I  think  not,  some  atone  time  and  some  at  auother;  they  would  relieve  each 
other. 

12th.  Qus.  State  what  these  parties  were  doing  when  you  saw  them  at  that  pre- 
cinct.— Ans.  They  were  challenging  votes ;  some  on  convictions,  and  some  on  wrong 
residence.  Some  voters  when  offering  to  vote  gave  their  names,  and  when  asked  the 
number  of  their  residences  would  hold  up  a  little  strip  with  the  street  and  number 
on  it,  without  giving  the  street  and  number. 

13th.  Qus.  Did  you  hear  any  challenges  for  causes  other  than  you  have  stated  ? — 
Ans.  I  don't  recollect.    There  may  have  been  others. 

14th.  Qus.  You  have  referred  to  a  convicted  list;  explain  particularly  what  you 
mean  by  that. — Ans.  I  mean  the  pamphlets  furnished  by  the  courts  of  disfranchise- 
ments. 

15th.  Qus.  Were  these  pamphlets  of  which  you  speak  in  the  hands  of  challengers  ? — 
Ans.  Yes,  sir. 

16th.  Do  I  understand  you  to  have  said  in  answer  to  former  qaestions  that  the 


244  WADDILL   VS.   WISE. 

challenges  were  when  the  person  offering  to  vote  gave  a  residence  different  from  tho 
one  appearing  on  the  registration  book,  or  when  his  name  appeared  on  tho  list  of 
persons  disfranchised  on  account  cf  conviction  for  crime  f — Aus.  When  the  name  of 
person  offering  to  vote  appeared  on  the  disfranchised  list  he  was  then  challenged  un- 
til the  matter  conUl  be  looked  into  as  to  whether  he  was  the  man  on  tho  list  or  not. 
When  the  judges  were  satisfied  that  he  was  not  the  ujau  he  was  permitted  to  vot<;. 

17th.  Qus.  How  did  the  judges  satisfy  themselves  when  there  was  a  challenge  on 
account  of  conviction? — Ans.  Diff-dirent  ways  ;  sometimes  in  the  discrepancy  of  age, 
number  of  years  of  residence,  and  date  of  conviction. 

18th.  Qus.  Have  you  ever  been  connected  with  the  police  court  of  the  city  of  Rich- 
mond ? — Ans.  Yes,  sir ;  four  years  as  bailiff  of  that  court. 

19th.  Qus.  State  whether  or  not  that  disfranchised  list  of  which  you  have  spoken 
is  a  large  or  small  one. — Ans.  Very  large  one. 

20lh.  Qus.  State  whether  from  your  experience  as  a  policeman  j'ou  have  had  occa- 
sion to  go  amongst  the  colored  people  of  Jackson  ward  to  obtain  information  or  to 
find  colored  men  there. — Ans.  Yes,  sir ;  I  have. 

Slst.  Qus.  What  is  your  experience  iu  getting  information  of  one  colored  person  as 
to  the  whereabouts  of  another  ? — Ans.  It  is  almost  impossible, 

22nd.  Qus.  State  what  is  their  habit  as  to  residence  ;  I  mean  whether  they  change 
frequently  or  not. — Ans.  As  a  general  rule  they  do. 

23rd.  Qus.  Yon  have  told  me  that  you  were  connected  with  the  pohce  court  for 
about  four  years,  and  for  a  long  number  of  years  connected  with  the  police  force  of 
this  city  ;  give  me  your  opinion  as  to  the  necessity  of  a  close  canvass  of  Jackson  ward 
in  the  inteiest  of  a  fair  election. — Ans.  I  think  it  absolutely  necessary  to  come  at  any- 
thing like  a  fair  election. 

24th.  Qus.  Did  you  hear  any  questions  asked  by  Democratic  challengers  on  that 
day  which  you  thought  to  be  unnecessary  and  uncalled  for;  if  so,  state  them. — Ans. 
I  did  not ;  I  thought  the  questions  were  very  reasonable  and  conservative. 

2u(h.  Qus.  Were  you  during  any  portion  of  the  day  of  election  near  enough  to  the 
polling  window  to  observe  and  hear  what  passed  tljiere  ? — Ans.  I  was ;  but  did  not 
take  any  notice  of  anything  on  the  inside,  as  there  was  nothing  which  attracted  my 
attention  particularly  on  the  inside. 

26th.  Qus.  Were  you  not  near  enough  to  hear  and  see  the  challengers  and  voters 
at  the  window? — Ans.  Yes,  sir;  near  enough  to  touch  either  of  them  most  of  the 
time. 

Edward  L.  C.  Scott  testified : 

7th.  X  Question.  (By  same.)  Was  Mr.  Douglass'  vote  challenged  ? — Answer. 
There  was  some  controversy,  but  after  a  full  explanation  his  ballot  was  cast,  the 
judges  being  satisfied  that  ho  was  entitled  to  vote. 

8th.  X  Question.  (By  same.)  Did  you  hear  the  controversy? — Answer.  Some 
portions  of  it. 

9th.  X  Question.  (By  same.)  Did  yon  hear  enongh  of  it  to  find  out  what  the  real 
question  in  controversy  was? — Answer.  I  heard  Mr.  Douglass  tell  the  judges  that  he 
lived  on  this  side  of  the  C.  and  O.  railroad  tracks,  which  is  the  boundary  line  of  Ash- 
land precinct ;  I  mean  the  side  next  to  Ashland. 

W.  H.  Ma88EY( colored),  witness  for  contestant,  testified: 

11th.  Ques.  Tell  all  that  happened  after  you  got  to  tho  voting  window? — Ans.  When 
I  got  to  the  voting  window  my  name  was  called  by  some  one ;  I  don't  know  who.  I 
told  the  gentleman  what  my  name  was.  Mr.  Belvin  said  you  don't  live  at  311  West 
Duval  st.  I  told  him  yes.  1  did  live  there.  Some  one  said  my  name  was  not  on  the 
books. 

12th.  What  did  the  judges  of  the  election  say?— Ans.  They  give  my  ticket  back 
and  told  me  to  stand  aside. 

13th.  There  are  three  judges  of  election  and  two  clerks.  Was  .nny  vote  taken  on 
your  right  to  vote  ? — Ans.  All  they  said  to  me  was  to  stand  aside  ;  I  could  not  vote. 

14th.  Ques.  I  am  speaking  of  the  judges  of  election.  Now  you  understand.  Do  you 
refer  to  them  when  you  say  they  told  me  to  stand  aside  ? — Ans.  The  man  that  took 
my  ticket  told  me  to  stand  aside. 

]r)th.  Ques.  Where  did  that  man  stand  ? — Ans.  He  was  inside  of  the  window. 

George  Lyxch  (colored),  witness  for  contestant,  testified: 

Ist.  Qu.  Tell  all  that  took  place  between  you  and  the  man  you  handed  your  ticket 
to  at  the  window. — Ans.  I  handed  the  ticket  to  the  man  and  he  asked  mo  what  my 
name  was,  and  I  told  him  George  Lynch  ;  he  said  he  could  not  find  my  name  on  that 
book  he  had;  he  told  me  to  go  back  to  the  house  and  get  the  number  I  voted  from  on 
Brooke  avenue;  I  went  and  got  it  and  did  not  get  to  the  polls  any  more. 

2nd.  Qu.     (By  same.)     Were  yon  sworn? — Ans.  No,  sir. 

3rd.  Qu.  (By  same.)  Who  told  you  to  stand  aside? — Ans.  I  don't  know  his  name, 
hut  it  was  the  gentleman  who  took  my  ticket. 


^        WADDILL   VS.    WISE.  245 

4th.  Qu.  (By  same.)  Were  you  told  to  stand  aside  so  that  somebody  else  could 
vote? — Ans.  No,  sir;  he  just  told  me  to  get  my  number  and  come  back. 

RiCHAno  Taylok  (colored), witness  for  contestant,  testified  : 

5th.  Question.  (By  same.)  Why  were  you  not  allowed  to  vote;  and  is  there  any- 
thing else  that  you  could  have  done  that  you  did  not  do  to  have  enabled  yon  to  vote  t 
What  ticket  would  you  have  voted — who  for  President  and  who  for  Congress?     . 

(Excepted  to  on  the  ground  that  it  assumes  matter  that  has  not  been  testified  to 
by  the  witness,  and  also  on  the  ground  that  it  is  not  competent  to  ask  a  witness  what 
ticket  he  would  have  voted.) 

Answer.  When  I  got  to  the  window  I  handed  the  man  my  ticket,  and  he  looked  on 
the  )>ooIi  and  said  my  name  wa'n't  on  the  book.  My  ticket  was  handed,  back  to  me 
and  I  was  told  to  stand  aside.  I  went  away  in  half  an  hour.  I  would  have  voted 
the  Republican  ticket.  I  would  have  voted  for  Harrison  for  President,  and  Waddill 
for  Congress. 

Minor  Johnson  (colored),  witness  for  contestant,  testified: 

8th  X  Q.  You  say  Mr.  Belvin  challenged  your  vote,  and  that  at  the  time  he  simply 
said  h«  objected  to  your  voting.  What  else  took  place  at  that  time  ? — Ans.  Well,  the 
clerk  said  that  he  had  some  two  or  three  Minors  there,  and  Minor  Johnson  was  not  on 
the  book. 

i)th.  Q.  What  clerk  told  you  this? — Ans.  I  disremember  the  clerk's  name. 

lOth.  X  Q.  Was  it  the  elerk  of  election  who  held  the  registration  book  of  colored 
voters? — Ans.  Yes,  sir;  I  think  it  were. 

llth.  X  Q.  Did  Mr.  Allan  pull  you  out  of  line  immediately  after  the  clerk  told  you 
this  ? — Ans.  No,  sir ;  I  was  willing  to  swear  my  name. 

12th.  X  Q.  Wh^at  hour  did  this  happen  ? — Ans.  About  11  o'clock. 

13th,  X  Q.  Do  you  mean  to  say  that  Mr.  Allan  did  not  pull  you  out  of  line  ;  or  did 
any  one  do  so? — Ans.  He  did  pull  me  out. 

i4th.  Q.  Did  you  resist  ? — Ans.  Well,  I  don't  know. 

15th.  X  Q.  Lid  you  quietly  submit  to  being  pulled  out  of  line? — Ans.  I  did,  sir. 

16th.  X  Q.  Why  did  you  submit?  And  if  you  were  willing  to  give  up  your  right 
to  vote,  why  did  you  not  stand  aside  yourselfAwithont  being  pulled  out  of  line? — Ans. 
Because  I  thought  it  was  right  after  he  pulled  me.  I  didn't  stand  aside  myself  be- 
cause they  objected  to  swearing  me. 

17th.  X  Q.  Had  you  ever  met  Mr.  Allan  before? — Ans.  I  had  not,  to  know  him. 

I'^th.  X  Q.  Would  you  have  allowed  any  one  else  to  have  pulled  you  out  of  line? — 
Ans.  I  don't  know,  sir.     I  couldn't  tell. 

I9th.  X  Q.  Why  did  you  allow  Mr.  Allan  to  do  so? — Ans.  Well,  I  didn't  know  Mr. 
Allan  any  more  than  any  other  man  at  that  time. 

Whitfield  Stewart  (colored),  witness  for  contestant,  testifies  : 

1st.  Qu.  When  you  handed  your  ticket  to  the  judge  of  election  and  told  him  that 
your  name  was  Whitfield  Stewart,  and  he  then  told  yon  that  there  was  no  such  name 
as  Whitfield  Stewart  on  the  books,  did  he  tell  you  to  stand  aside  so  that  somebody 
else  might  come  up  and  vote  ?— Ans.  Yes,  sir. 

2Dd.  Qu.  (By  same.)  Did  anybody  else  have  anything  to  say  to  you  there  besides 
the  judge  of  election  ? — Ans.  No,  sir. 

3rd.  Qu.  (By  same.)  Did  you  see  anj'body  there  who  seemed  to  be  interfering  with 
the  voters  ? — Ans.  There  was  some  interruption ;  more  than  I  thought  was  necessary. 

4th.  Qu.  (By  same.)  Who  was  doing  this  ? — Ans.  I  don't  know.  I  was  in  a  strange 
place  up  there. 

George  Mimms  (colored),  witness  for  contestant,  testified  : 

34.  X  Ques.  Did  you  see  auy  intimidation,  terrorizing,  or  bulldozing  about  the  polls 
that  day  f  If  so,  toll  just  what  it  was  and  who  was  doing  it. — Ans.  No,  sir  ;  I  did  not 
,pay  any  attention  ;  I  did  not  see  any  of  it. 

Oliver  Brown  (colored),  witness  for  contestant,  testified : 

12th.  X  Q.  While  they  were  so  looking  for  your  name  did  the  man  who  had  taken 
^\our  ballot  stand  at  the  window  with  it  in  his  hand  waiting  for  them  to  find  it  ? — Ans. 
One  was  holding  it  and  waiting  at  the  window. 

loth.  X  Q.  Did  anybody  pull  you  from  the  window,  or  did  you  get  aside  yourself? — 
'  Ads.  The  crowd  shoved  me  and  told  me  to  get  away,  and  I  got  aside  myself.  Nobody 
pulled  me  away. 

14th.  X  Q.  Did  you  see  the  gentleman  at  the  window  put  his  head  out  and  urge  the 
crowd  to  stand  back  and  tell  them  that  if  they  did  so  they  could  vote  faster  ? — Ans.  I 
didn't  hear  him  say  that  while  I  was  there. 

15th.  X  Q.  Did  you  hear  some  colored  men  on  the  outside  urge  the  colored  voters 
not  to  iiush  and  crowd  so,  and  that  if  they  would  not  they  could  vote  faster? — Ans. 
Yes,  sir. 


246  WADDILL   VS.    WISE.       ♦ 

We  give  now  in  extenso  the  testimony  of  H.  M.  Smith,  jr.,  who  was 
cue  of  the  principal  Democratic  challengers  in  Jackson  ward  and 
we  invoke  a  careful  reading  of  it : 

5fh.  Quea.  (By  same.)  State,  as  well  as  you  can,  what  you  did  there  on  that  <lay. — 
Ans.  When  I  got  there  there  were  some  600  or  800  negroes  and  8  or  10  white  men,  pos- 
sibly more,  counting  policemen  and  deputy  marshals,  who  were  not  .ilways  on  the 
spot.  When  I  walked  up  I  was  greeted  by  Major  Miles  Gary,  who  I  afterwiinls 
learned  had  charge  of  the  Democratic  forces,  of  the  Democratic  challengers  and  run- 
ners, at  that  precinct,  who  said,  "lam  very  glad  you  came,  and  woiild  be  very  glad 
if  you  would  help  Mr.  Belvin  as  challenger  at  the  window  ;  "  which  I  proceeded  to 
do,  and  in  which  capacity  I  continued  during  the  day. 

6th.  Ques.  (By  same.)  About  how  far  were  yon,  as  a  general  thing,  from  Mr.  Bel- 
vin ? — Ans.  I  presume  from  6  inches  to  two  feet;  I  might  say  from  ^  of  an  inch  to  two 
feet,  to  be  more  exact. 

7tb.  Ques.  (By  same.)  From  the  time  you  got  there  until  the  polls  closed,  who  did 
the  challenging  ? — Ans.  Either  Mr.  Belvin  or  myself ;  no  one  else  that  I  can  think  of 
on  the  Democratic  side. 

8th.  Ques.  (By  same.)  Did  Mr.  Belvin,  while  he  challenged,  have  any  book  in  his* 
hand  ?  If  so,  what  was  it  ? — Ans.  He  had  the  usual  challenger's  book,  which  was  an 
alphabetical  list  of  the  colored  voters  in  that  precinct,  it  being  a  copy  of  the  colored 
registration  hook  which  had  been  verified  as  far  as  possible  by  the  Democratic  can- 
vassers ;  I  mean  by  verified  that  the  canvassers  had  made  an  effort  to  ascertain 
whether  the  voters  lived  in  the  houses  or  at  the  places  where  they  were  registered 
from. 

9ih.  Ques.  (By  same.)  State,  as  well  as  you  can,  the  grounds  of  challenge  made  by 
you  or  Mr.  Belvin. — Ans.  There  were  several  grounds  of  challenge':  First,  on  account 
of  the  voter's  name  being  called  out  by  himself  different  from  what  it  was  on  the  reg- 
istration books ;  second,  his  age  being  different ;  third,  his  residence  being  different; 
fourth,  his  name  being  on  the  disqualified  list. 

10th.  Ques.  (By  same.)  State  as  well  as  you  can  the  questions  that  were  asked 
upou  the  respective  grounds  of  challenge. — Ans.  When  a  voter  came  up  to  the  polls 
be  would  call  his  name  out ;  we  would  then  look  on  our  challenging  book  to  see  if  he 
was  registered ;  if  the  name  was  not  on  the  registiation  book,  it,  of  course,  needed  no 
challenge  to  keep  the  man  from  voting;  but  sometimes  there  was  a  name  on  the  reg- 
istration book,  not  the  name  given  by  the  voter,  but  bearing  some  similarity  to  it ; 
we  would  then  call  the  judges'  attention  to  the  difference,  that  they  might  be  satisfied 
that  he  was  the  same  man  whose  name  was  registered  ;  one  of  the  ways  of  ascertaining 
this  fact  was  to  ask  him  his  age,  his  occupation,  and  his  residence.  Again,  a  voter's 
nau  e  would  be  all  right,  but  on  challenge  book  would  show  that  the  canvasser  had 
ascertained  and  made  a  memorandum  of  the  fact  that  the  voter  did  not  live  in  the 
house  to  which  he  was  credited  ;  in  such  instances  we  would  ask  him  where  he  re- 
sided ;  if  he  gave  a  residence  different  from  the  registered  one,  but  within  the  pre- 
cinct, we  made  no  further  objection  ;  if  without  tne  precincl.,  we  challenged  him. 
Again,  we  frequently  found  the  voter's  name  on  the  disqualified  list,  in  which  case 
we  challenged  on  that  ground,  and  would  require  the  voter  to  purge  himself,  unless 
some  of  the  judges  or  reputable  Republicans  were  satisfied  or  assured  us  that  it  was 
not  the  same  man.  The  questions  which  we  asked,  of  course,  varied  with  the  different 
circumstances,  but  they  were  asked  and  were  calculated  to  elicit  the  different  phases 
above  enumerated. 

19th.  Ques.  (By  same.)  Several  witnesses  called  on  behalf  of  Judge  Waddill  have 
testified  that  both  you  and  Mr.  Belvin  asked  of  the  voters  silly  and  unnecessary 
questions,  some  of  which  were  as  follows :  "  Who  owned  you  before  the  war  ?"  "  Are 
you  married  ?  How  many  children  have  you  ?"  State  whether  or  not  you  asked  any 
such  questions  yourself,  or  heard  Mr.  Belvin  ask  any  such. — Ans.  No,  sir ;  there  were 
no  such  questions  asked  of  any  voter  standing  ready  to  vote,  and  the  judges  and 
supervisors  would  not  have  allowed  it.  The  Republican  supervisor,  Mr.  Duncan, 
even  went  so  far  as  to  object  to  our  asking  what  I  conceive  to  be  legitimate,  relevant, 
and  necessary  questions.  There  was  a  good  deal  of  pleasantry  going  ou  during  the 
day  back  from  the  window  between  Mr.  Belvin  and  myself  on  the  one  side,  and  Mr. 
Edgar  Allen,  Mr.  Rockcharlie,  Mr.  Powell,  and  Capt.  Ben.  Scott  on  the  other  hand, 
during  any  intermission  or  lull  in  our  work,  and  I  have  no  doubt  that  if  there  are 
any  witnesses  who  honestly  and  truthfully  testified  that  such  questions  were  asked 
got  their  impression  from  what  was  said  while  we  were  off  duty,  so  to  speak. 

20th.  Ques.  (By  same.)  It  has  also  been  testified  that  useless  questions  were  asked 
as  to  the  voter's  age,  old  men  and  men  in  the  prime  of  life  being  asked  whether  they 
were  21  years  of  age.  State  what  you  know  about  that. — Ans.  I  am  certain  that  no 
such  questions  were  asked  of  any  such  voters;  I  think  though  that  I  can  give  the 
grounds  for  that  impression,  and  if  my  memory  serves  me  right,  I  think  some  of  the 
witnesses  have  admitted  that  it  is  from  this  source  that  I  am  about  to  explain  that 


^  WADDILL    VS.    WISE.  ^  247 

they  got  tbeir  impression  ;  I  refer  to  the  oath  which  the  voter  is  required  to  take  iu 
the  event  he  is  challeuged,  which  oath  is  to  the  elfect  that  is  21  years  old,  aud  is  the 
identical  person  he  represents  himself  to  be,  etc. 

21st,  Qiies.  (By  same.)  You  have  mentioned  the  names  of  Mr.  Allen  and  Mr. 
Rockcharlie  ;  please  state  their  position  in  relation  to  Mr.  Belvin  during  the  day. — 
Ans.  They  stood  immediately  behind  him  and  were  looking  at  his  book  most  of  the 
time. 

William  J.  Stevens,  judge,  testified : 

2l8t.  Ques.  (By  same.)  State,  as  well  as  you  can,  the  nature  of  the  questions 
asked  to  the  voters  when  challenged  upon  the  diiferent  grounds. — Ans.  They  were 
only  those  allowed  by  law,  as  to  their  age,  residence,  and  occupation.  I  remember 
no  foolish  or  silly  questions  being  asked  at  all. 

22nd.  Ques.  (By  same.)  When  challenged  upon  the  ground  of  being  on  the  dis- 
qualified list  what  was  the  nature  of  the  questions  then  ? — Ans.  If  they  were  the  par- 
ties whose  name  appeared  on  that  list. 

23rd.  Ques.  (By  same.)  Did  yon  hear  or  not  any  question  asked  of  the  voters  such 
as,  "Who  owned  yon  before  the  war"?  "Are  you  married"?  "How  many  children 
have  you"  ? — Ans.  None  that  I  remember  at  all. 

24th.  Ques.  (By  same.)  Whatposition  did  the  Democratic  challengers  occupy  as  to 
the  window? — Ans.  Coming  from  the  north  they  were  to  the  left  of  the  window,  that 
is,  to  my  right  hand. 

2r)th.  Ques.  (By  same.)  To  which  side  were  the  colored  voters  ? — Ans.  They  were 
to  my  left. 

26th.  Ques.  (By  same.)  How  much  of  the  window  did  the  Democratic  challengers 
occupy  ? — Ans.  I  suppose  about  one-third  of  it. 

27th.  Ques.  (By  same. )  Did  they  or  not  prevent  the  colored  voters  from  getting  to 
the  window  to  vote  ? — Ans.  They  did  not. 

Henry  W.  Ruff,  judge,  testified: 

12th.  Ques.  (By  same.)  Could  you  hear  or  not  what  took  place  at  the  window 
between  the  judges,  the  challengers,  and  the  voters  ? — Ans.  I  could  hear  a  good  deal 
of  it. 

13th.  Ques.  (By  same.)  State  as  well  as  you  can  what  were  the  nature  of  the 
questions  asked  during  the  day  by  the  Democratic  challengers. ^Ans.  If  they  found 
them  on  the  disqualified  list  they  would  ask  them  if  they  had  ever  been  found 
guilty  of  anything.     I  don't  remember  any  other  kind  of  questions. 

14th.  Que.s.  (By  same.)  Did  you  hear  any  challenged  on  the  ground  of  residence? — 
Ans.  Yes,  sir;  two  or  three,  I  reckon ;  I  can't  say  how  many. 

15th.  Ques.  (By  same.  Did  all  the  colored  voters  that  oft'ered  to  vote  give  correctly 
the  number  of  their  residence? — Ans.  No,  sir;  I  don't  suppose  one-half  of  them  did. 

IGth.  Ques.  (By  same.)  When  a  wrong  residence  was  given  were  any  questions 
put  to  the  voters;  and,  if  sOy  what  were  the  nature  of  them? — Ans.  If  they  gave  the 
wrong  number  I  would  look  in  the  book  and  see  what  was  the  number  in  the  book, 
and  1  then  would  ask  them  if  they  ever  lived  at  the  number  on  the  book. 

17th.  Ques.  (By  same. )  Did  you  hear  any  question  asked  of  the  colored  voters, 
as  has  been  charged  by  several  of  the  colored  men,  as  follows :  As  to  who  owned  him 
before  the  war?  Whether  he  had  any  children,  and  how  many  he  had? — Ans.  No, 
sir;  I  did  not  hear  anything  like  that. 

W.  L.  TiMBERLAKE,  judge,  testified  : 

42nd.  X  Ques.  About  what  proportion  of  the  colored  voters  were  challenged  and 
sworn  ? — Ans.  I  can't  tell  you  ;  I  give  you  a  rough  calculation;  I  think  about  one  in 
twenty-five  or  something  of  that  kind ;  sometimes  eight  or  ten  would  be  challenged 
aud  sworn  right  straight  along,  and  then  there  would  be  fifteen  or  twenty,  and  per- 
haps thirty  or  more,  and  no  one  would  be  challenged. 

James  H.  Briggs  (colored),  witness  for  contestant,  testified : 

28th.  X  Q.  How  far  were  you  from  the  challengers  that  diy  ? — Ans.  Sometimes  I 
wjis  within  2  or  3  feet  of  them  ;  sometimes  further. 

29ih.  X  Q.  Please  state  some  of  the  questions  usually  asked  a  voter  by  the  chal- 
lengers.— Ans.  Asked  them  their  names ;  where  do  you  say  you  live ;  what  is  your 
number;  did  you  say  1714?  No,  sir;  I  said  1417.  Ever  been  to  jail;  wasn't  you  ar- 
rested for  stealing  last  year ;  what  did  you  say  your  name  was,  John  Eobinson ;  how 
you  spell  it?  Robtsou.  Did  you  sayRobson?  No,  sir.  Well,  didn't  you  used  to 
live  at  number  506  ?  No,  sir.  Well,  hero's  another  man  the  same  name,  I  think  that 
must  be  you.  And  all  sorts  such  questions  as  that  they  would  ask;  more  so  on  that 
day  than  I  have  ever  known. 

30th.  X  Q.  Do  you  think  that  the  questions  that  you  have  given  above  fairly  illus- 
trate the  character  of  questions  asked  of  voters  on  last  election  day? — Ans.  Yes,  sir; 
to  the  best  of  my  judgment. 


248 


WADDILL   VS.    WISE. 


We  have  now  given  the  testimony  of  twenty-two  witnessess,  colored 
and  white,  including  judges  and  clerks  of  election  and  Democratic  chal- 
lengers, and  this  number  could  be  largely  increased  if  we  thought  it 
necessary,  as  to  the  nature  of  the  challenging  and  the  character  of  the 
questions  propounded,  and  it  is  hard  to  believe  that  any  unbiased  mind 
could  read  this  testimony  without  being  impressed  with  the  fact  that 
the  challenges  were  proper,  and  conducted  simply  with  a  view  of  elicit 
ing  the  truth  and  preventing  illegal  votes  from  being  cast. 

According  to  all  this  testimony'  not  a  frivolous  or  unnecessary  ques- 
tion was  asked. 

The  voters  were  interrogated  as  to  their  ages  and  residences,  for  the 
purpose  of  ascertaining  whether  they  were  tlie  persons  registered  and 
whether  they  had  been  convicted  of  petit  larceny  or  felony,  to  ascertain 
whether  they  were  the  parties  under  the  same  names  on  thcf  disfran- 
chised lists. 

It  seems  to  the  minority  of  the  committee  that  to  hold  that  those 
challenges  were  unjustifiable  would  be  to  deter  electors  from  guarding 
and  protecting  the  ballot-box  in  the  future  from  frauds  and  wrongs 
which,  if  permitted,  would  convert  elections  into  a  sham  and  a  farce. 

A  critical  examination  of  the  testimony  of  the  colored  voters  who 
were  as  alleged  deprived  of  the  right  to  vote  will  furnish  the  strongest 
reasons  for  the  closest  scrutiny  of  this  class  of  voters.  It  will  be  found 
that  large  numbers  of  them  in  their  testimony  swore  most  recklessly 
and  in  answer  to  leading  and  suggestive  questions,  which  seem  to  have 
been  stereotyped  by  the  contestant,  absolutely  perjured  tiiemselves. 

IVIany  of  them,  too,  while  swearing  that  they  were  qualified  voters, 
made  statements  at  variance  with  that  fact. 

Our  conclusion  is,  that  the  charge  that  the  Democratic  challengers 
were  engaged  in  a  conspiracy  to  defraud  the  colored  voters  of  their 
right  to  vote  and  that  they  did  unnecessarily  and  fraudulently  obstruct 
and  hinder  them  is  not  sustained. 

COMPARATIVE  VOTES  IN  JACKSON  WARD. 

The  number  of  votes  cast  at  the  first,  third,  and  fourth  precincts  of 
Jackson  ward  at  various  elections  was  as  follows : 


Precinct. 

1884  (Pres- 
idential). 

1886  (liquor 
license). 

1886  (muni- 
cipal). 

1889  (bouse 

of 
delegates). 

1886  (Pres- 
idential). 

First «.. 

254 

782 
820 

282 
681 
742 

270 
639 
730 

638 
754 
768 

431 

Third 

575 

718 

1,856 

1,705 

1,639 

2,100 

1,  724 

In  the  five  elections  the  average  vote  in  the  three  precincts  was  1,816, 
or  only  92  votes  more  than  in  1888. 

In  each  precinct  the  average  was  as  follows : 

First  precinct  375,  or  56  less  than  in  1888. 
Third  precinct  686,  or  111  more  than  in  1888. 
Fourth  precinct  755,  or  31  more  than  in  1888. 

CALL   OF  CONSTITUTIONAL  CONVENTION. 

Article  12,  section  2,  of  the  constitution  of  Virginia  reads  as  follows: 

At  the  general  election  to  be  held  in  the  year  1808,  and  in  each  twentieth  year 
thereafter,  and  also  at  such  time  as  the  general  assembly  may  by  law  provide,  the 
question  "  Shall  there  be  a  convention  to  revise  the  constitution  and  amen<l  the 
same  ?"  shall  be  decided  by  the  electors  qualified  to  vote  for  members  of  the  general 
assemblv. 


WADDILL   VS.    WISE.  249 

In  pursuance  of  this  constitutional  requirement  the  general  assembly 
of  Virginia  at  its  session  1886-'87  passed  the  following  act : 

Be  it  enacted  bi/  the  general  assembly  of  Virginia,  That  at  the  general  election  to  be 
held  for  the  election  of  Representatives  in  Concjress  and  electors  for  President  and 
Vicc-Pr(i3ido,ut  of  the  United  States,  on  the  first  Tuesday  after  the  first  Monday  in 
November,  1888,  as  required  by  the  constitution  of  Virginia,  there  shall  be  submit- 
ted to  the  electors  qualified  lo  Vote  for  members  of  the  general  assembly  the  question 
'•  Shall  there  be  a  convention  to  revise  the  constitution  and  amend  the  same  f" 

{2)  The  judges  of  election  at  each  of  the  several  voting  places  in  this  State  are 
hereby  required  to  provide  a  ballot-box  separate  from  that  in  which  are  to  be  depos- 
ited tiie  ballots  cast  for  Representatives  in  Congress  and  electors  for  President  and 
Vice- President,  in  which  separate  ballot-box  so  provided  the  judges  of  election  shall 
deposit  the  ballots  of  all  qualified  voters  voting  upon  the  question  of  a  convention  to 
revise  the  constitution  and  amend  the  same.  Said  separate  ballot-boxes  shall  be  pro- 
vided as  ballot-boxes  for  other  elections  are  provided. 

(:5)  The  ballots  to  be  used  in  said  election  shall  be  separate  from  the  ballots  cast 
fi>r  Representatives  in  Congress  and  electors  for  President  and  Vice-President,  and 
shall  be, respectively,  as  follows:  "For  Constitutional  Convention  "  and  "Against 
Constitutional  Convention." 

(4)  The  manner  of  receiving  and  canvassing  said  ballots  and  making  returns  and 
abstracts  thereof,  shall  conform  in  all  respects  to  the  requirements  of  the  general 
election  laws  of  the  State. 

Under  this  act  it  was  the  duty  of  the  judges  of  election  to  furnish 
electors  with  ballots  when  requested,  and  the  judges  of  election  in  Jack- 
sen  ward  were  simply  discharging  their  sworn  duty  when  they  fur 
nished  ballots  to  those  who  desired  them. 

It  was  also  the  duty  of  the  judges  to  explain  the  object  and  purpose 
of  the  ballots  tendered  if  desired,  and  if  they  had  failed  they  would 
have  been  derelict. 

Now  if  the  votes  in  the  three  precincts  of  Jackson  ward  were  not  as 
large  as  the  contestant  contends  they  ought  to  have  been,  this  resulted 
necessarily  to  some  extent  from  the  delay  caused  by  the  submission  of 
this  question  to  the  people  at  that  election. 

In  conclusion,  we  submit : 

First.  That  the  judges  of  election  were  guilty  of  no  wrong-doing ;  that 
all  they  did  was  strictly  in  the  line  of  their  official  duty. 

Second.  That  the  Democratic  challengers  were  not  guilty  of  fraudu- 
lently, unlawfully,  or  unnecessarily  hindering  or  obstructing  the  voters 
in  casting  their  ballots. 

Third.  That  while  there  was  some  unnecessary  delay  and  some  votes 
were  isrobably  lost  to  the  contestant,  it  was  the  result  of  the  tardiness 
of  the  Republican  judge  at  the  first  precinct  in  finding  the  names  of 
voters  on  the  registration  book  and  the  conduct  of  the  Eepublican  Fed- 
eral supervisors  at  the  first  and  third  precincts. 

Having  thus  reported  our  conclusions  on  the  facts  contained  in  the 
record,  we  proceed  to  an  examination  of  the  decisions  of  the  courts  and 
the  House  in  similar  cases. 

The  court  of  appeals  of  New  York  in  Hart  m.  Harvey,  19  Howard 
Pr.  Reports,  page  252,  had  before  it  the  express  question  whether  a 
vote  not  cast  could  be  counted  for  the  candidate  for  whom  the  voter 
intended  or  desired  to  vote,  and  uses  the  following  language : 

The  result  of  the  election  must  be  determined  by  the  vote  cast.  If  illegal  votes  can 
be  ascei  tained  they  may  be  rejected ;  but  votes  not  received  can  never  be  made 
available  in  favor  of  either  party. 

The  supreme  court  of  California  in  passing  upon  the  same  question, 
in  Webster  vs.  Byrnes,  34  Oal.,  page  276,  say  : 

Tho  court  below  erred  in  counting  for  contestant  the  supposed  votes  of  Gonsalves, 
Larkin,  and  Haas,  under  the  pretense  that  they  would  have  voted  for  hini  had 
they  been  allowed  to  vote.     In  all  contests  of  this  character  the  question  is,  Which 


250  WADDILL    VS.    WISE. 

candidate  received  the  highest  uwmber  of  legal  votes?  The  idea  that  the  supposed 
votes  of  persons  who  did  not  vote,  but  who  could  have  voted  had  they  taken  the 
necessary  legal  steps  to  entitle  them  to  do  so,  should  be  counted  for  the  candidate  for 
whom  I  hey  would  have  voted,  is  simply  preposterous. 

The  supreme  court  of  Alabama  in  the  case  of  the  State  ew  reL  Speuce 
vs.  The  Judge  of  the  Ninth  Judicial  Circuit,  13  Ala.,  page  811,*  say : 

Smoot  offered  to  vote  at  the  election,  but  his  vote  was  not  received,  and  he  would 
have  voted  for  Spence.  *  *  *  It  is  perhaps  unnecessary  to  inquire  whether  tLe 
managers  should  have  permitted  Smoot  to  vote  or  not,  for  he  did  not  vote,  and  even 
it  his  vote  could  have  had  any  influence  in  changing  the  result  of  the  election,  as  in 
fact  it  was  not  given,  it  could  only  have  authorized  the  circuit  judge  to  have  declared 
the  election  void,  but  could  not  authorize  him  to  count  it  as  actually  given  to  Spence. 

To  the  same  effect  see  Newcura  vs.  Kirtley,  supreme  court  of  Keu- 
tucky,  reported  in  13  B.  Munroe,  page  515. 

It  will  thus  be  seen  that  the  highest  courts  in  the  States  of  New  York, 
Oaliforuia,  Alabama,  and  Kentucky  have  held  that  even  though  a  legal 
voter  should  tender  his  ballot  to  the  managers  of  the  election,  and  they 
should  reject  the  same,  yet  such  vote  could  never  be  counted  for  either 
party.  The  fact  that  the  vote  was  illegally  rejected,  and  that  the  voter 
declared  under  oath  for  whom  he  intended  and  desired  to  vote  would 
not  authorize  the  tribunal  th^t  must ''judge"  of  1  he  election  tocount  such 
vote,  the  election  must  be  determined  by  the  votes  actually  cast;  and 
if  it  appear  that  a  sufficient  number  of  votes  to  change  the  result  were 
unlawfully  or  improperly  rejected,  the  effect  would  be  to  render  the 
election  void.  The  undersigned  have  not  had  their  attention  called  to, 
nor  are  they  aware  of  any  decision  of  any  court  in  any  of  the  States,  or 
of  the  United  States,  which  establishes  or  maintains  any  other  or  dif- 
ferent rule  from  that  here  laid  down. 

The  first  case  reported  to  the  House  of  Representatives  in  which  the 
contention  was  that  votes  not  cast  should  be  counted  was  the  case  of 
Biddle  and  Richard  vs.  Wing,  at  the  first  session  of  the  Nineteenth  Con- 
gress.   In  that  case  the  committee  say : 

Mr.  Richard  rests  his  claims  to  the  seat  on  grounds  which,  to  the  committee,  appear 
entirely  novel,  and,  as  they  do  not  at  all  interfere  with  any  of  the  matters  in  contro- 
versy between  the  other  candidates,  will  be  first  examined.  He  does  not  pretend  that 
he  has  received  the  greatest  number  of  votes  that  were  actually  given,  but  that  he 
would  have  received  the  greatest  number  of  votes  had  not  his  friends  at  the  election 
holden  in  the  city  of  Detroit  been  intimidated  from  voting  by  reason  of  the  interfer- 
ence of  deputy  sheriffs  and  constables  who,  it  is  alleged,  under  the  pretence  of  keep- 
ing the  peace,  struck  several  persons  on  the  head,  and  by  that  means  prevented  them, 
and  many  others,  from  voting  for  Mr.  Richard.  The  committee  are  of  opinion  that 
the  duty  assigned  them  does  not  impose  on  them  an  examination  of  the  causes  which 
may  have  prevented  any  candidate  from  getting  a  sufficient  number  of  votes  to  enti- 
tle him  to  the  seat.  They  consider  that  it  is  only  required  of  them  to  ascertain  who 
had  the  greatest  number  of  legal  votes  actually  given  at  the  election.  An  election 
is  the  act  of  selecting,  on  the  part  of  the  electors,  a  person  for  an  office  or  trust.  In 
case  of  the  application  of  the  contrary  doctrine,  the  greatest  uncertainty  must  neces- 
sarily prevail ;  and,  should  it  be  estaljlished,  it  would  be  placiug  in  the  hands  of  a 
few  riotous  individuals  the  power  of  defeating  any  election  whatever.  The  law  ap- 
points a  particular  time  and  place  for  the  expression  of  the  popular  voice;  when  that 
time  is  past  it  is  too  late  to  inquire  who  did  not  vote,  or  the  reason  why.  The  only 
question  now  to  be  detennined  is  for  whom  the  greatest  number  of  the  legal  votes 
have  been  given. 

The  next  case  we  find  involving  this  question  is  that  of  Niblack  vs. 
Walls,  Forty-second  Congress.  In  that  case  the  committee  departed 
from  the  rule  established  in  the  courts  and  the  report  in  Biddle  &  Rich- 
ard vs.  Wing,  and  held  that  votes  not  cast  or  even  offered  to  the  man- 
agers of  election  might  be  counted.  The  facts  of  the  case  arc  reported 
in  the  following  words : 

We  are  satisfied  from  the  evidence  that  there  was  an  organized  effort  on  the  part 
of  the  friends  of  the  contestant  to  prevent  a  full  vote  being  cast  at  this  poll  for  the 


WADDILL    VS.    WISE.  251 

sitting  member,  and  that  it  was  partially  successful.  This  conspiracy  was  carried 
out  by  creating  a  disturbance  at  the  election  by  threats  of  violence  and  the  exhibi- 
tion of  deadly  weapons,  and  particularly  by  crowding  about  'he  polls  in  such  num- 
bers as  to  prevent  many  colored  voters  from  reaciiing  the  polls  to  deposit  their  bal- 
lots, and  with  this  intent. 

The  eoiumittee  then  proceed  to  deny  that  rejection  of  the  poll  would 
be  a  remedy  for  such  wrongs,  and  say  some  other  remedy  must  be 
found.    In  these  words  it  is  presented :     - 

This  is  to  be  found  in  the  rule,  which  is  well  settled,  that  where  a  legal  voter 
offers  to  vote  for  a  particular  candidate,  and  uses  due  diligence  in  endeavoring  to  do 
eo,  and  is  prevented  by  fraud,  violence,  or  intimidation  from  depositing  his  ballot, 
his  vote  should  be  counted.  The  principle  is  that  the  offer  to  vote  is  equivalent  to 
voting. 

This  report  we  understand  to  be  directly  contrary  to  the  decisions 
of  the  courts,  and  the  only  case  which  had  before  been  presented  to  the 
House,  and  we  are  unable  to  ascertain  in  what  place  and  before  what 
tribunal  such  rule  had  been  "  well  settled  ; "  in  fact,  it  appears  to  have 
been  set  up  in  the  case  of  Niblack  vs.  Walls  for  the  first  time,  without 
any  precedent  to  sustain  it,  and  we  think  an  examination  of  the  cases 
subsequently  decided  by  this  House  will  show  that  the  rule  therein 
suggested  has  never  in  any  single  instance  been  followed. 

In  Frost  vs.  Metcalf,  reported  in  1879,  the  committee  say  : 

While  on  this  branch  of  the  subject  your  committee  will  dispose  of  the  complaint 
made  by  the  contestant  that  by  reason  of  the  errors  in  copying  tiie  registration  list 
he  lost  many  more  votes  than  contestee.  To  count  votes  which  were  never  offered 
at  any  poll  is  ca:rying  the  doctrine  further  than  we  ever  knew  it.  To  authorize  this 
committee  to  count  a  vote  four  things  are  requisite  :  first,  the  person  offering  to  vote 
must  have  been  a  legal  voter  at  the  place  he  offered  to  vote  ;  second,  he  must  have 
offered  his  vote ;  third,  it  must  have  been  rejected,  and  fourth,  it  must  be  shown  for 
whom  he  offered  to  vote. 

The  case  of  Yeates  vs,  Martin  relied  upon  does  not  touch  the  question 
of  counting  votes  not  cast. 
In  the  case  of  Bisbee  vs.  Finley,  reported  in  1882,  the  committee  say : 

As  a  question  of  law  we  do  not  understand  it  to  be  controverted  that  a  vote  offered 
by  an  elector  and  illegally  rejected  should  be  counted  as  if  cast. 

The  committee  in  that  case  affirm  that, each  vote  counted  by  it  was  in 
fact  by  the  voter  actually  tendered  to  the  election  officers,  and  was  by 
such  election  officers  rejected. 

In  Sessinghaus  vs.  Frost,  reported  in  3883,  each  vote  counted  was 
actually  tendered  by  the  voter  to  the  election  officers,  and  was  by  the 
election  officers  rejected. 

Bell  vs.  Snyder,  reported  in  1874,  was  based  on  a  failure  to  open  the 
polls  until  three  hours  after  the  appointed  time,  and  is  no  authority  for 
counting  votes  not  cast.  Thus  we  see  the  House  has  never  followed 
the  rule  suggested  in  Niblack  vs.  Walls ;  that  rule  is  not  well  settled, 
and  has  never  been  established  in  this  House.  In  Frost  vs.  Metcalf  the 
House  expressly  refused  to  follow  it,  and  the  rule  prescribed  in  the 
latter  case  has  ever  since  been  recognized  as  the  correct  one.  There  are 
objections  even  to  the  rule  as  there  laid  down;  any  extension  of  it  is 
fraught  with  difficulties  and  dangers,  and  until  this  time,  since  the  re- 
port in  that  case,  no  committee  of  this  House  has  ventured  to  depart 
from  it. 

The  majority  of  the  present  committee  and  the  majority  of  this  House 
in  the  case  of  Mudd  vs.  Compton,  just  decided,  failed  and  refused  to 
conform  to  or  apply  the  rule  laid  down  in  the  case  of  Niblack  vs.  Walls, 
which  it  is  now  sought  to  enforce.  It  was  claimed  in  Mudd  vs.  Comp- 
ton, that  a  sufficient  number  of  legal  voters  to  have  changed  the  result 


252  WADDILL    VS.    WISE. 

bad  they  voted  were  stuDding  in  line  at  the  polls  for  the  purpose  and 
with  the  intention  of  voting  for  contestant:  but  were  prevented  from 
doing  so  by  intimidation;  and  yet  the  committee  did  not  count  such 
votes  as  cast — it  reported  in  favor  of  rejection  of  the  polls,  and  the 
House,  after  full  discussion,  adopted  such  report. 

The  act  of  Congress  referred  to  in  the  report  of  the  committee  refers 
only  to  qualification  of  voters  and  not  to  the  act  of  voting.  The  citations 
from  McCrary,  and  Paine  on  elections,  referred  to  in  the  report  of  the 
committee,  are  based  ui)on  the  decisions  of  the  House  herein  reviewed, 
and  as  we  have  shown  are  not  sustained  by  any  of  the  cases  referred  to 
except  Niblack  vs.  Walls,  which  is  a  departure  from  and  contrary  to 
the  established  rule  and  which  stands  alone,  unsupported,  so  far  as  we 
have  been  able  to  learn,  by  a  decision  of  any  court  or  of  any  legislative 
body  in  this  country. 

It  seems  to  us  that  the  rule  contended  for  by  the  majority  in  this  case 
would  open  wide  the  door  for  fraud  and  invite  false  swearing,  which  tbe 
opposing  party  would  have  no  means  of  refuting.  To  hold  that  anything 
short  of  an  actual  tender  of  the  ballot  to  tbe  election  officers  and  a  re- 
jection by  them  was  an  offer  to  vote,  would  be  a  most  dangerous  and 
uncertain  rule  and  one  to  which  we  can  not  give  our  sanction.  Where 
the  evidence  plainly  establishes  the  fact  that  a  legal  voter  offers  his  bal- 
lot to  the  election  officers  and  they  unlawfully  reject  the  same,  under 
the  precedents  heretofore  established  such  vote  may  be  counted  for  the 
candidate  for  whom  the  voter  offered  to  vote.  Conceding  for  the  pur- 
pose of  the  argument  all  that  is  claimed  by  the  contestant  in  tbis  case, 
to  wit,  that  by  fraud  and  intentional  hindrance  and  delay  a  large  num- 
ber of  voters  who  intended  to  vote  for  him  were  unable  to  reach  the 
poll  to  tender  their  ballots,  although  they  used  diligence ;  tliat  when 
the  polls  closed  a  large  number  of  voters  present  on  the  ground  desiring 
to  vote  for  him  had  for  such  reasons  been  unable  to  do  so,  and  that 
thus  a  sufficient  number  of  voters  were  prevented  from  voting  to  have 
changed  the  result  bad  they  succeeded  in  voting;  still,  inasmuch  as 
there  was  no  actual  tender  of  their  votes  and  rejection  tbereof  by  the 
election  officers,  such  votes  can  not  be  counted  for  contestant;  they 
have  not  -been  offered  and  rejected^  and  the  most  that  can  be  claimed 
under  this  assumed  state  of  facts  is  that  there  has  been  no  fair  and  full 
election  within  the  meaning  of  the  law,  and  that  neither  partj'  shall  be 
adjudged  entitled  to  tbe  seat. 

In  the  case  before  us  we  have  before  said  we  do  not  believe  there  was 
any  considerable  obstruction  of  the  voters  in  their  rigiit  to  vole  ;  but  it 
appears  that  at  the  time  the  polls  were  closed  at  3  precincts  of  Jackson 
ward  there  were  a  number  of  voters  present  at  each  polling  place  desir- 
ing and  intending  to  vote  who  were  prevented  from  doing  so  through 
no  fault  of  their  own,  and  it  is  possible  that  such  voters  were  sufficient 
in  number  to  have  changed  the  result  had  they  all  voted  for  the  con- 
testant. Under  these  circumstances  we  have  been  somewhat  embar- 
rassed to  determine  what  recommendation  we  should  make  to  the  House. 
As  we  have  shown,  under  such  a  state  of  facts,  the  courts  determine  the 
result  by  the  vote  actually  cast.  The  enforcement  of  that  rule  in  this 
case  would  give  the  seat  to  the  sitting  member. 

But  we  are  not  satisfied  of  the  justice  of  such  rule.  While  it  is  true 
that  neither  the  contestee  nor  his  partisans  can  justly  beheld  responsi- 
ble for  the  failure  of  any  of  the  voters  to  exercise  their  right  of  suffrage 
yet  we  believe  that  some  were  deprived  of  tbe  opportunity  to  vote  and 
that  tbe  number  might  have  been  sufficient  to  cliange  the  result,  and 
so  believing  in  the  interest  of  fair  phiy  and  complete  justice  we  are 


WADDILL    V6.    WISE.  253 

Dot  inclined  to  hold  the  contestant  responsible  for  the  inefficiency  of 
the  Republican  jntlge  or  the  conduct  of  the  Republican  Federal  su])er- 
visors,  but  are  ot  the  opinion  that  the  ends  of  justice  will  be  subserved 
by  remitting  the  election  to  the  people  of  the  district  who  can,  unem- 
barrassed by  the  constitutional  convention  question,  freely  declare  their 
choice,  and  we  therefore  submit  the  following  resolution  : 

Resolved,  That  the  seat  now  held  by  George  D.  Wise  as  theEepreseu- 
tative  in  the  Fifty-first  Congress  from  the  Third  Congressional  district 
of  Virginia,  be,  and  the  same  is  hereby,  declared  vacant. 

Charles  F.  Cris:^. 

Chas.  T.  O'Ferrall.  I 

J.   H.   OUTHWAITE. 

R.  p.  C.  Wilson. 
Levi  Maish. 
L.  W.  Moore. 


JOHN  V.  MoDUFFIE  vs.  LOUIS  W.  TUEPIN. 

FOURTH  ALABAMA. 


The  issues  in  this  case  are  almost  entirely  questions  of  fact,  about 
the  only  legal  questions  involved  being  as  to  the  admissibility  of  testi- 
mony and  the  weight  of  evidence. 

Contestant  charged  that  in  a  large  number  of  precincts  throughout 
the  district  the  officers  of  election  fraudulently  counted  thousands  of 
votes  for  contestee  which  were  in  fact  cast  for  contestant.  The  com- 
.mittee  find  the  charge  sustained  by  the  evidence,  and  that  to  count  the 
vote  as  proved  to  have  been  cast  would  make  a  change  of  17,634  votes 
in  favor  of  contestant.  The  minority  find  fraud  proved  in  eight  or  nine 
precincts,  and  by  restating  the  vote  of  these  precincts  according  to  the 
evidence,  and  counting  a  number  of  precinct  returns  not  counted  by  the 
county  canvassing  boards,  make  a  change  of  4,049  votes  in  favor  of 
contestant.  This  being  less  than  the  majority  returned,  and  the  evi- 
dence being  insufficient  to  sustain  the  charges  of  fraud  in  other  pre- 
cincts, the  right  of  contestee  to  the  seat  is  sustained. 

The  resolutions  presented  by  the  committee  were  adopted  by  the 
House  June  4,  1890,  by  a  vote  of  130  to  113,  and  Mr.  McDufifie  was 
sworn  in.  The  debate  will  be  found  on  pages  55J2  to  5601  of  the 
Becord. 

(1)  Returns.  Their  weight  as  prima  facie  evidence. 

In  considering  the  evidence  with  reference  to  particular  precinct  re- 
turns it  is  first  necessary  to  inquire  by  whom  the  election  was  held  in 
order  to  determine  what  weight  should  be  given  to  the  returns.  Eeturns 
are,  as  a  rule,  prima  facie  evidence  of  the  result;  but  if  the  integrity  of 
the  inspectors  is  in  any  way  impeached,  either  by  showing  that  their 
character  is  such  as  to  cast  suspicion  on  their  acts,  or  that  their  belief 
is  that  frauds  upon  elections  are  justifiable,  or  that  the  manner  of  their 
selection  wAs  such  as  to  indicate  a  purpose  to  procure  a  false  statement 
of  results,  then  the  returns  lose  much  of  the  weight  that  would  other- 
wise attach  to  them. 

(2)  Conspiracy.    Partisan  appointment  of  election  boards  evidence  of. 
When  the  law  provides  that  each  of  the  two  political  parties  shall 

have  representation  on  the  election  board  of  inspectors  it  is  a  provision 
to  prevent  dishonest  partisans  from  making  false  returns ;  and  in  such 

255 


256  m'duffie  vs.  turpin. 

case  the  appointment  of  men  incompetent  to  determine  Avlietlier  the 
return  is  honest  or  not  to  represent  the  pa^rty  opposed  to  the  appointing 
power,  tends  to  prove  an  intent  to  prevent  that  watchfulness  intended 
to  be  secured  by  the  statute,  and  raises  a  strong  suspicion  (if  it  does 
not  fully  prove)  of  conspiracy  to  falsify  the  returns. 

(3)  Irregular  election.     When  permissible. 

"  In  extraordinary  cases,  and  where  it  appears  that  in  no  other  way 
can  the  actual  will  of  the  voter  be  ascertained,  a  resort  to  methods  not 
technically  in  accordance  with  statutory  direction  may  be  justifiable, 
and  upon  proof  that  a  full,  fair,  and  honest  election  has  been  held  by 
those  only  who  are  qualified  voters,  under  these  circumstances  the  re- 
turns from  such  an  election,  when  duly  proved,  may  be  considered  and 
counted. 

None  of  those  guards  provided  by  statute  to  secure  honest  results 
should  be  neglected,  but  when  statutory  provisions  designed  to  protect 
qualified  voters  in  the  exercise  of  their  legal  rights  are  made  use  of  with 
deliberate  purpose  to  suppress  the  will  of  the  majority,  such  action  will 
be  regarded  as  fraudulent." 

(4)  Return.    Neglect  to  make. 

Voters  are  not  to  be  disfranchised  by  any  neglect  of  the  officers  after 
the  election  if  the  correct  vote  can  be  ascertained. 

(5)  Evidence.     Of  vote  cast. 

The  evidence  of  persons  who  issued  tickets  and  claim  to  know  that 
they  were  voted  is  admissible  to  prove  that  the  vote  of  a  precinct 
differed  from  the  return,  and  if  sufficiently  clear  and  convincing  may 
be  conclusive  of  the  falsity  of  the  returns. 


H^PORT. 


May  7, 1890. — ^Mr.  Eowell,  from  the  Committee  on  Elections,  submit- 
ted the  following  report: 

The  Committee  on  Elections,  having  had  under  consideration  the 
contested-election  case  of  John  V.  McDuffie  vs.  Louis  W.  Turpin,  from 
the  Fourth  Congressional  district  of  Alabama,  submit  the  following 
report : 

The  Fourth  district  of  Alabama  is  composed  of  the  counties  of  Dallas, 
Hale,  Lowndes,  Perry,  and  Wilcox.  At  the  election  held  November 
6,  1888,  Louis  W.  Turpin  was  the  Democratic  candidate  for  Representa- 
tive in  the  Fifty-first  Congress,  and  John  V.  McDuffie  was  the  Repub- 
lican candidate. 

The  result  of  the  election  as  certified  to  the  Secretary  of  State  was 
as  follows : 


Counties. 

Tnrpin. 

McDuffie. 

Dallas     

5,705 
3, 170 
2,131 
2,  961 
4,811 

1,706 
1,220 

Hale      

1,  442 

650 

Wilcox - - 

607 

Total 

18, 778 

5,625 

Turpin 18,778 

McDuffie    5,625 


Majority  for  Tnrpin 13,153 

Under  this  return  the  contestee  received  the  certificate  of  election, 
and  McDuffie  contests.  Notice  of  contest  was  served  and  answer  filed 
as  provided  for  by  statute  covering  all  matters  considered  in  this  re- 
port. 

With  such  a  returned  majority  for  contestee,  it  is  apparent  either 
that  this  contest  is  a  huge  farce,  or  that  this  whole  district  is  honey- 
combed with  fraud. 

Before  proceeding  to  consider  the  evidence  in  the  record  of  this  par- 
ticular case,  the  committee  deems  it  proper  to  review  to  some  extent 
the  recent  political  history  of  this  district. 

By  the  census  of  1880  the  population  of  the  Fourth  district  was  as  fol- 
lows : 


Counties. 

White. 

Colored. 

ballas 

8,425 
4,9U3 
5, 645 
7,150 
6,711 

40,  007 
21,650 

[ale 

tOwndes ..    .                  ..  .  .. 

28,  528 

'erry 

23, 591 

rncox 

25, 117 

f         Total 

32,  824 

135,  893 

H.  Mis.  137 17 


257 


258  m'duffie  vs.  tuepin. 

Upon  the  assumption  that  one  out  of  every  five  of  the  population  is 
a  qualified  voter,  this  would  give  iu  rouud  numbers  in  the  district 
6,500  white  voters  and  27,000  colored  voters,  or  more  than  four  times 
as  many  colored  as  white.  The  population  of  the  district  is  compara- 
tively stable,  and  it  may  safely  be  assumed  that  at  the  present  time  the 
same  relative  proportion  of  white  and  colored  exists,  and  that  the  in- 
crease of  population  is  no  more  than  normal. 

At  the  State  election  in  1874  the  counties  comprising  this  district 
gave  a  Eepublican  majority  of  14,946.  This  was  before  the  "  revolu- 
tion "  which  placed  all  political  power  in  the  State  of  Alabama  in  the 
hands  of  the  Democratic  party.  At  the  Presidential  election  iu  1876 
the  Republican  electors  received  a  majority  of  9,446,  At  the  Con- 
gressional election  in  1880,  for  Representative  in  the  47th  Congress, 
Charles  M.  Shelley,  Democratic  nominee,  was  declared  elected  by  ,a 
majority  of  2,651  over  his  Republican  opponent,  James  Q.  Smith  ;  the 
vote  certified  being : 

Shelley 9,301 

Smith 6,650 

Total 15,951 

Smith  contested,  and  the  Committee  on  Elections  of  the  House 
found  (and  the  House  approved)  the  true  vote  to  be : 

Smith 11,507 

Shelley 8,704 

Smith's  majority <?,  803 

This  did  not  include  the  total  vote  cast,  but  was  the  vote  which,  in 
the  opinion  of  the  committee,  could  be  definitely  ascertained.  Mr. 
Kanney,  of  the  committee,  stated  the  vote : 

Smith. 11,807 

Shelley 8,735 

Majority  for  Smith 3,072 

W.  J.  Stephens,  another  Republican,  received,  according  to  the  re- 
turns, 1,693  votes,  making  the  total  Republican  majority  4,766. 

In  this  case,  Mr.  Smith  having  died  before  its  final  determination, 
the  seat  was  declared  vacant.  Mr.  Shelley  went  before  the  people  again 
at  the  November  election,  in  1882,  as  a  Democratic  candidate  for  the 
unexpired  term  of  the  Forty-seventh  Congress  and  for  the  Forty-eighth 
Congress.  He  received  a  certificate  of  election  to  both  and  took  his 
seat  at  the  second  session  of  the  Forty-seventh  Congress  and  served 
out  his  term.  John  W.  Jones,  his  Republican  competitor  for  the  unex- 
pired term  of  the  Forty-seventh  Congress,  memorialized  the  House  for 
a  more  speedy  method  of  determining  the  right  to  the  seat  than  that 
furnished  by  the  statute,  the  time  for  taking  testimony  under  existing 
law  extending  beyond  the  life  of  that  Congress.  He  alleged  frauds 
similar  to  those  by  which  Shelley  had  obtained  his  first  certificate. 
The  committee  reported  in  favor  of  an  investigation  by  a  select  com- 
mittee, but  the  Congress  expired  by  limitation  before  action  was  taken. 

George  H.  Craig  was  General  Shelley's  Republican  competitor  for 
the  seat  in  the  Forty-eighth  Congress ;  and  although  General  Shelley's 
rights  under  his  second  certificate  to  the  Forty-seventh  Congress  were 
never  directly  determined,  the  facts  as  they  were  developed  in  the 
Forty-eighth  fully  demonstrated  that  that  certificate  was  obtained  by 
the  same  fraudulent  and  illegal  methods  which  had  given  him  his  first 
certificate. 


MCDUFFIE   VS.   TURPIN.  259 

Craig  contested  his  right  to  a  seat  in  the  Forty-eighth  Congress. 
The  result  of  the  election,  as  certified  to  the  secretary  of  state,  was : 

Shelley 7,150 

Craig 4,435 

Total 11,605 

Shelley's  majority 2,715 

The  Committee  on  Elections  of  the  House,  a  majority  of  whose  mem- 
bers were  partisan  friends  of  General  Shelley,  found  the  true  vote  to 
be: 

Craig 10,671 

Shelley 7,212 

Total 17,883 

Craig's  majority - 3, 450 

The  remarkable  feat  of  counting  Shelley  in  was  accomplished  by 
rejecting  returns  made  to  the  various  county  boards  by  precinct  oflQcers, 
on  account  of  supposed  technical  defects.  In  arriving  at  this  result 
the  committee  did  not  include  precinct  returns,  which  gave  Craig  an 
additional  majority  of  1,338.  Had  these  returns  been  counted,  Craig's 
majority  would  have  been  4,766.  In  declining  to  count  these  additional 
returns  the  committee  uses  this  language: 

It  will  be  observed  that  the  committee  has  not  counted  a  number  of  districts  which 
were  returned  and  not  counted  by  the  board  of  supervisors  of  the  several  counties. 
This  was  done  out  of  extreme  caution  to  count  no  precinct  except  where  there  was 
oral  evidence  to  sustain  the  returns  of  the  precinct  officers. 

Elections  were  held  and  returns  made,  but,  out  of  extreme  caution,, 
the  committee  did  not  count  them,  because  contestant  had  failed  to 
strengthen  them  by  oral  proof.  Here  was  a  majority  of  over  4,000 
turned  into  a  minority  of  over  2,700,  and  yet  the  committee  add: 

It  does  not  criticise  the  action  of  the  board  of  supervisors  of  the  several  counties 
in  rejecting  these  precincts. 

The  committee,  however,  reports  in  favor  of  Mr.  Craig,  and  adds : 

In  doing  this  it  has  not  only  followed  the  precedents  established  by  the  House  of 
Representatives,  but  the  decisions  of  the  supreme  court  of  Alabama. 

Tardy  justice  was  done  to  Mr.  Craig,  by  giving  him  the  seat  to  which 
he  was  elected,  late  in  the  second  session ;  but  the  delay  in  finally  de- 
termining the  case  kept  him  from  prosecuting  a  contest  which  he  had 
commenced  in  the  Forty-ninth  Congress. 

It  will  thus  be  seen  that  General  Shelley  was  twice  certified  to  the 
Forty-seventh  Congress,  and  once  to  the  Forty-eighth,  although  in 
each  case  he  had  actually  been  defeated  by  large  majorities. 

In  the  Fiftieth  Congress  there  was  also  a  contest  from  this  district. 
At  the  election  for  that  Congress  the  certified  result  was  as  follows: 

A.  C.  Davidson,  Democrat 14,913 

J.  V.  McDuffie,  Republican 3,526 

B.  F.  Turner,  Independent  Republican 2,517 

Total 20,956 

Davidson's  plurality,  11,387. 

The  report  in  that  case,  made  by  the  Democratic  members  of  the 
committee,  cut  Davidson's  plurality  down  to  8,890,  a  deduction  of  2,497. 
The  Eepublican  minority  of  the  committee  held  and  reported  that  a 
fraudulent  conspiracy  existed  in  four  of  the  five  counties  in  the  dis- 
trict to  defeat  the  will  of  the  people ;  that,  had  the  vote  been  honestly 
counted,  McDuflie  would  have  been  elected  by  a  large  majority,  and 


260  MCDUFFIE   VS.    TURPIN. 

that  by  the  unimpeached  and  honest  returns  of  contestant's  own 
county  (Lowndes)  he  received  a  majority  of  1,625,  and  was  elected. 
We  shall  have  occasion  to  refer  to  this  case  later  on. 

From  this  account  of  the  action  of  the  election  officers  and  returning 
boards  of  this  district  it  is  clearly  evident  that  there  has  existed  a  fixed 
determination  on  the  part  of  the  Democratic  managers  there  that  the 
will  of  the  majority  should  be  disregarded,  and  a  willingness  to  resort 
to  any  methods,  however  unlawful  and  criminal,  to  accomplish  the  de- 
feat of  their  Republican  opponents.  The  record  in  this  case  justifies 
and  fully  confirms  the  above  conclusion,  and  shows  that  the  same  con- 
ditions continue  to  exist. 

If  the  certified  returns  in  this  case  are  true,  it  follows  (allowing 
for  500  increase  in  white  voters  since  1880,  and  2,000  increase  in 
colored)  that  all  the  white  voters  and  at  least  11,800  colored  men  voted 
for  contestee,  while  only  5,625  voted  for  contestant,  and  more  than 
11,500  did  not  vote  at  all.  That  is  to  say,  more  than  two-thirds  of  the 
colored  men  who  cast  their  ballots  voted  for  contestee,  and  43  per  cent, 
did  not  vote  at  all. 

In  the  light  of  history,  and  of  that  knowledge  common  to  all  well-in- 
formed men,  it  is  not  too  much  to  say  that  such  a  report  is  a  self-evident 
falsehood,  unless  there  is  a  present  condition  of  affairs  in  the  Fourth 
district  of  Alabama  taking  that  district  out  of  the  rule  which  prevails 
everywhere  else. 

The  record  in  this  case  demonstrates  its  falsity  beyond  a  reasonable 
doubt.  The  evidence  in  this  record,  as  in  other  records  from  the  same 
district,  shows  conclusively  that  the  great  majority  of  the  colored  men 
there  are  Republicans,  and  that  when  they  vote  they  vote  the  Republi- 
can ticket. 

The  evidence  of  the  certified  returns,  on  the  other  hand,  shows  that 
a  large  majority  of  them  vote  the  Democratic  ticket.  The  conflict  is 
between  the  returns  and  the  men  who  cast  the  ballots  on  which  the 
returns  purport  to  be  based. 

The  evidence  also  shows  that,  in  almost  every  voting  district,  there 
are  a  few  colored  Democrats,  well  known  to  both  white  and  black.  It 
also  shows  that  where  the  whites  are  in  a  majority  a  greater  number  of 
colored  men  vote  the  Democratic  ticket  than  in  localities  where  the  blacks 
greatly  preponderate. 

The  evidence  further  discloses  that  the  Republicans  have  kept  up 
their  party  organization,  that  they  continue  to  take  great  interest  in 
elections,  and  as  a  rule  are  eager  to  exercise  the  right  to  %'ote.  It 
further  shows  that  at  this  election  there  was  entire  harmony  in  the 
ranks,  the  only  exception  being  a  so-called  Republican  paper  of  small 
circulation  and  less  influence,  which  lent  itself  to  the  Democracy. 

The  evidence  further  establishes  the  fact  that  throughout  the  district 
there  was  a  general  belief  among  the  Republicans  that  there  would  not 
be  an  honest  count  of  the  votes ;  that,  whatever  the  actual  result,  con- 
testee would  be  declared  elected,  and  that  it  would  be  necessary  to  prove 
the  true  vote  by  other  means  than  the  returns,  and  to  appeal  to  the 
House  to  correct  the  anticipated  wrong  to  the  voters.  Such  belief  does 
not  exist  so  universally  without  cause.  The  history  of  this  district,  the 
common  knowledge  of  the  mass  of  voters  in  it  of  announced  results  at 
former  elections,  and  the  action  of  county  officers  in  appointing  inspect- 
ors of  election,  fully  justified  the  belief;  and  results  prove  that  the 
belief  was  foreknowledge. 

The  election  laws  of  Alabama,  so  far  as  they  are  necessary  to  under- 
stand the  issue  in  this  case,  are  here  inserted. 


M^DUFI^IE   VS.   TtJRPlN.  261 

Section  1.  Be  it  enacted  by  the  Genei'al  Assembly  of  Alahama,  That  every  male  citizen 
of  the  United  States,  and  every  male  person  of  foreign  birth  who  has  been  natural- 
ized, or  who  may  have  legally  declared  his  intention  to  become  a  citizen  of  the 
United  States,  before  he  offers  to  vote,  who  is  tweuty-one  years  old  or  upwards,  who 
shall  have  resided  in  the  State  one  year,  three  months  in  the  county,  and  thirty  days 
in  the  precinct  or  ward  next  immediately  preceding  the  election  at  which  he  offers  to 
vote,  is  a  qualified  elector,  and  may  vote  in  the  precinct  or  ward  of  his  actual  resi- 
dence, and  not  elsewhere,  for  all  officers  elected  by  the  people. 

Approved  February  9,  1877. 

Sec.  252.  The  courts  of  county  commissioners  may,  in  their  respective  counties,  es- 
tablish, change,  or  abolish  election  precincts  and  places  of  voting  therein,  and  may 
change  the  boundary  lines  thereof,  as  the  convenience  of  the  voters  in  such  precincts 
may,  in  their  judgment,  be  promoted  thereby;  but  no  order  under  this  section  shall 
take  effect  unless  made  at  least  «ixty  days  before  an  election,  nor-until  three  mouths 
after  notice  thereof  has  been  posted  up  at  the  court  door  of  such  county. 

Sec.  "^58.  Number  of  boxes  and  by  tvhom  provided, — The  probate  judge,  sheriff,  and 
clerk  of  the  circuit  court  of  each  county  in  the  State  shall  provide  one  ballot-box, 
and  where  it  is  deemed  necessary  shall  provide  more  than  one,  and  not  more  than 
three,  at  each  place  of  voting. 

Chapter  III,  Article  I. 

Sec.  259.  Inspectors  and  precinct-returning  officers,  how  appointed. — The  judge  of 
probate,  sheriff,  clerk  of  the  circuit  court,  or  auy  two  of  them,  must,  at  least  thirty 
days  before  the  holding  of  any  election  in  their  county,  appoint  three  inspectors  for 
each  place  of  voting,  two  of  which  shall  be  members  of  opposing  political  parties,  if  prac- 
ticable, and  one  returning  officer  for  each  precinct  to  act  at  the  place  of  holding  elec- 
tions in  each  precinct;  and  it  shall  be  the  duty  of  the  sheriff  to  notify  such  inspectors 
and  returning  officers  of  their  appointment  within  ten  days  after  such  appointment. 

Sec.  260.  Sheriff  is  county  returning  officer. — The  sheriff  of  each  county,  or  the  person 
discharging  the  duties  of  such  office,  is  the  returning  officer  of  the  county. 

Sec.  262.  Duties  of  inspectors  and  returning  officers  in  holding  election;  how  places  sup- 
plied on  failure  to  attend. — It  shall  be  the  duty  of  the  inspectors  and  the  returning 
officers  appointed  to  meet  at  the  place  of  holding  elections  in  the  several  precincts 
for  which  they  have  been  appointed  by  eight  o'clock  of  the  morning  of  the  day  of 
election,  and  before  nine  o'clock  open  the  several  polling  places  as  designated.  And 
on  the  failure  of  any  inspector  or  returning  officer  to  attend  at  the  hour  of  eight 
o'clock,  such  as  may  be  present  may  complete  the  number.  If  none  of  the  inspectors 
appointed  are  present  the  returning  officer  of  the  precinct  shall  appoint  three  inspect- 
ors to  act,  who  in  every  such  instance  shall  be  qualified  electors  who  are  entitled  to 
vote  at  that  polling  place.  And  if  there  should  be  no  inspectors  or  returning  officer 
present  by  the  hour  of  eight  o'clock  at  any  polling  place,  then  any  three  qualified 
electors  who  are  entitled  by  law  to  vote  at  that  polling  place,  in  the  election  to  be 
held,  may  open  the  polls  and  serve  as  inspectors  during  the  election. 

Sec.  263.  Returning  officer  absent  inspectors  appoint, — If  the  returning  officer  is  not 
present  at  the  hour  appointed,  the  inspectors,  or  those  acting  as  such,  must  appoint 
one  to  serve  during  the  election. 

Sec.  264.  Clerks  of  election. — Inspectors,  before  opening  the  polls,  must  select  two 
persons  to  act  as  clerks. 

Sec.  265.  Oath  of  inspectors  and  clerks. — Before  opening  the  polls,  the  inspectors  and 
the  clerks  must  take  an  oath  to  perform  their  duties  at  such  election,  according  to 
law,  to  the  best  of  their  judgment,  and  the  inspectors  must  also  swear  that  they  will 
not  themselves,  or  knowingly  allow  any  other  person,  to  compare  the  number  of  the 
ballots  with  the  number  of  the  votes  enrolled,  which  oath  may  be  administered  by 
the  inspectors  to  each  other,  or  by  the  returning  officer,  or  a  justice  of  the  peace. 

Sec.  271.  Hours  of  opening  and  closing  the  polls. — The  polls  must  be  opened  at  each 
voting  place,  in  each  voting  precinct,  between  the  hours  of  eight  and  nine  o'clock  in 
the  morning,  and  be  kept  open,  without  intermission  or  adjonrnmenl,  until  the 
hour  of  five  in  the  afternoon,  and  no  longer. 

Sec.  281.  Five  witnesses  for  each  political  party  may  attend  each  voting  place, 
without  restriction  as  to  distance,  for  the  purpose  of  challenging  persons  who  may  be 
suspected  of  attempting  to  vote  illegally. 

Style  of  Ballots  (Acts  of  Alabama,  1878-'79,  Page  72). 

Section  1.  The  ballot  must  be  a  plain  piece  of  white  paper,  without  any  figures, 
marks,  rulings,  characters,  or  embellishments  thereon,  and  not  less  than  two  or  more 
than  two  and  one-half  inches  wide,  and  not  less  than  five  or  more  than  seven  inchea 


262  m'duffie  vs.  turpin. 

lonp,  on  which  must  be  written  or  printed,  or  partly  written  and  partly  printed,  only 
the  names  of  the  persous.for  whom  the  elector  intends  to  vote,  and  must  designate 
the  otMce  for  which  each  person  so  named  is  intended  by  him  to  be  chosen,  and  any 
ballot  otherwise  than  described  is  illegal  and  must  bs  rejected. 
Approved  February  12,  1879. 

Mode  of  Receiving  Ballots  (Acts  of  1878-'79,  Page  78). 

Sectiox  1.  One  of  the  inspectors  must  receive  the  ballot  folded  from  the  elector, 
and  the  same  passed  to  each  of  the  other  inspectors,  and  the  ballot  must  then,  with- 
out being  opened  or  examined,  be  deposited  in  the  proper  ballot-box. 

Approved  February  8,  1879. 

Manner  of  Counting  the  Votes  (Acts  of  Alabama,  1878-79,  Page  73). 

Section  1.  In  counting  oat,  the  returning  officer  or  one  of  the  inspectors  must 
take  the  ballots,  one  by  one,  from  the  box  in  which  they  have  been  deposited,  at  the 
same  time  reading  aloud  the  names  of  the  persons  written  or  printed  thereon  and  the 
office  for  which  such  persons  are  voted  for.  They  must  separately  keep  a  calculation 
of  the  number  of  votes  each  person  receives,  and  for  what  office  he  receives  them  ;  and 
if  two  or  more  ballots  are  found  rolled  up  or  folded  together,  so  as  to  induce  the  be- 
lief that  the  same  was  done  with  a  fraudulent  intent,  they  must  be  rejected;  or,  if 
any  ballot  contains  the  name  of  more  than  the  voter  had  a  right  to  vote  for  the  first 
of  such  names  on  such  ticket  to  the  number  of  persons  the  voter  was  entitled  to  vote 
for  only  must  be  counted. 

Approved  February  13,  1879. 

Article  IV,  Code  of  Alabama. 

Sec.  285.  Counting  out  votes. — It  is  the  duty  of  all  inspectors  of  elections  in  the 
election  precincts,  immediately  on  the  closing  of  the  polls,  to  count  out  the  ballots 
so  polled. 

Sec.  287.  Statement  of  votes  and  one  poll-list  certified,  sealed  up  in  a  box,  and  delivered 
to  returning  officer. — As  soon  as  the  ballots  are  all  counted  out  the  inspectors  must 
ascertain  the  number  of  votes  received  for  each  person  and  for  what  office,  and  must 
make  a  statement  of  the  same  in  writing,  which  statement  must  be  signed  by  them. 
They  must  also  certify  in  writing  on  the  poll-list  that  snch  poll-list  is  the  poll-list  of 
the  election  precinct  or  ward  at  which  they  were  inspectors,  the  day  and  year  on 
which  election  was  held,  and  for  what  offices,  which  certificates  must  be  signed  by 
them,  and  such  statement  of  the  poll-list  and  votes  thus  certified  must  be  sealed  up 
together  with  the  list  of  the  registered  voters  in  such  precinct  or  ward  at  such  elec- 
tion, on  such  day,  in  a  box  to  be  furnished  by  the  shetiff  of  the  county,  one  or  more 
for  each  precinct  or  ward,  and  to  consist  of  wood,  tin,  or  sheet-iron,  and  securely 
fastened  by  locks,  directed  to  the  sheriff  of  the  county,  if  there  be  one,  and,  if  none, 
then  to  the  person  discharging  the  duties  of  such  office,  and  immediately  deliver  the 
same  to  the  returning  officer  of  the  precinct. 

Code  of  Alabama  (Sec.  289,  Page  242, 

Statement  and  poll-lists  returned  to  count}/  returning  officer. — The  statement  of  votes 
and  poll-lists  delivered  to  the  returning  officer  of  the  precinct  must  be  delivered  to 
the  returning  officer  of  the  county  within  forty  eight  hours  after  the  election. 

Vote  of  the  County,  estimated.    (Acts  of  Alabama,  1876-77,  Page  121.) 

Section  1.  Be  it  further  enacted,  That  on  Saturday  next  after  the  election,  at  the 
hour  of  12  meridian,  the  returning  officer  of  the  county,  in  person,  or  by  deputj',  and 
the  probate  judge  and  clerk  of  the  circuit  court,  shall  assemble  at  the  court-house, 
or  if  there  be  no  such  judge  and  clerk,  or  either  of  them  fail  to  attend,  or  if  either 
of  tliem  be  interested  by  reason  of  being  a  candidate  at  such  election,  his  place  must 
be  supplied  by  a  respectable  freeholder  or  householder  of  the  county  ;  and  if  all  such 
officers  be  of  the  same  political  party,  then  the  said  returning  officer  of  the  county 
must  summons  three  reputable  persons,  resident  householders  or  freeholders  of  the 
county,  members  of  the  opposite  political  party,  to  attend  at  such  time  and  place 
and  in  the  presence  of  such  other  persons  as  choose  to  attend;  and  it  shall  be  the 
duty  of  this  board  of  supervisors,  so  constituted,  to  make  a  correct  statement  from 
the  returns  of  the  votes  from  the  several  precincts  of  the  county  of  the  whole  nam- 


M'dUFFIE   vs.   TURPIN.  2G3 

ber  of  the  votes  given  therein  for  each  officer  and  the  person  to  whom  such  votes 
were  given. 

Approved  January  20,  1887. 

Sec.  384.  Ballots  and  second  poll-lists,  how  disposed  of. — The  inspectors  must  count 
the  ballots  deposited  in  the  box;  as  soon  as  all  the  ballots  contained  in  the  box  are 
counted  the  inspectors  shall  roll  up  the  ballots  so  counted,  and  label  the  same,  so  as 
to  show  for  what  officer  or  officers  the  ballots  contained  therein  were  received,  and, 
when  so  rolled  up  and  labeled,  shall  be  securely  sealed ;  the  rejected  ballots,  if  any, 
shall  also  be  rolled  up  and  labeled  as  rejected  ballots  and  sealed  up  as  the  other  par- 
cels; aud  the  packages  so  sealed  up  and  labeled,  together  with  one  poll-list,  which 
shall  also  be  securely  sealed  up,  shall  be  returned  to  and  securely  fastened  up  in  the 
box  from  which  such  ballots  were  taken  and  counted,  and  which  shall  also  be  sealed 
and  labeled,  so  as  to  show  the  nature  of  its  contents,  and  shall  be  kept  by  one  of  the 
inspectors  for  sixty  days;  and  then  the  packages  shall  be  taken  out  of  the  box,  with- 
out opening  or  unsealing  the  packages,  and  destroyed,  unless  within  that  time  the 
inspector  having  them  in  custody  is  notified  that  the  election  of  some  officer  for  which 
the  election  was  held  will  be  contested,  in  which  case  he  must  preserve  the  box  con- 
taining the  ballots  cast  for  such  contestant  until  such  contest  is  finally  determined, 
or  until  such  box  is  demanded  by  some  other  legally  constituted  custodian  during 
such  contest. 

Attention  is  called  to  some  of  the  features  of  the  law. 

If  any  of  the  inspectors  are  absent  from  the  place  of  election  at  8 
o'clock  a.  m.,  the  inspectors  present  may  complete  the  number,  and 
proceed  with  the  election.  If  no  inspector  is  present  at  8  o'clock,  and 
the  returning  officer  is,  he  may  organize  a  board  of  inspectors.  If  none 
of  these  officers  are  present  at  8  o'clock,  then  any  three  citizens,  quali- 
fied voters,  may  organize  the  board. 

One  ballot-box  is  to  be  i^rovided  by  the  sheriff,  and  if  necessary 
(that  is,  if  more  than  one  box  is  necessary  to  receive  the  votes),  then 
more  than  one,  and  not  exceeding  three. 

A  peculiar  feature  of  the  law  is  that  each  of  the  three  inspectors  must 
have  the  ballot  in  his  hand  before  it  is  deposited  in  the  box,  a  feature 
which  seems  to  have  been  devised  for  the  purpose  of  facilitating  fraud 
and  concealing  it.  One  dishonest  inspector  of  very  ordinary  skill  may, 
without  danger  of  detection,  change  a  large  portion  of  the  ballots  before 
they  reach  the  box.  The  other  two  may  honestly  testify  that  they  saw 
nothing  wrong.  So  that  two  inspectors  may  be  called  as  witnesses  and 
testify  to  the  honesty  of  the  election,  while  the  third,  who  perpetrated 
the  fraud,  is  left  in  the  background. 

After  the  election  and  return,  the  ballots  are  to  be  placed  in  the 
custody  of  one  of  the  inspectors,  to  be  kept  by  him  sixty  days,  and  theu 
destroyed  if  no  notice  of  contest  has  been  served  on  him  in  the  mean 
time.  No  record  is  made,  so  as  to  be  accessible,  of  which  inspector  has 
the  ballots ;  nor  is  any  means,  other  than  sealing,  provided  by  law  for 
their  safe-keeping  so  that  they  may  thereafter  be  safely  examined  with 
any  assurance  that  they  are  the  ballots  wh;ch  were  voted. 

The  inspectors  appointed  by  the  probate  judge,  sheriff,  and  circuit 
clerk  (or  any  two  of  them),  must  be  appointed  at  least  thirty  days 
before  the  election j  and,  if  practicable,  must  be  of  different  political 
parties. 

The  sheriff'  must,  at  a  given  time,  summon  the  probate  judge  and 
circuit  clerk  as  a  board  of  supervisors  to  ascertain  and  certify  the  result 
of  the  election.  If  these  officers  are  all  of  the  same  political  party,  then 
this  returning  officer  must  summon  three  reputable  householders,  citi- 
zens and  voters,  of  the  opposite  political  party,  to  make  up  this  return- 
ing board  or  board  of  supervisors.  In  connection  with  this  section  of  the 
statute  it  may  be  remarked  that  all  the  officers  made  returning  officers  by 
law  were  of  one  political  party,  but  nowhere  was  it  deemed  by  them  or 


2G4  m'duffie  vs.  turpin. 

the  sheriff  necessary  to  comply  with  the  terms  of  the  law  and  summon 
members  of  the  opposite  political  party  to  act  as  supervisors.  Such 
little  formality,  designed  to  secure  honest  returns,  seems  to  have  been 
entirely  forgotten. 

The  following  from  decisions  of  the  supreme  court  of  Alabama  have 
a  bearing  upon  the  case: 

It  is  tlie  electiou  wbicb  entitles  the  party  to  oflSce,  and  if  one  is  legiilly  elected  by 
receiving  a  majority  of  legal  votes,  bis  rigbt  is  not  impaired  by  any  omission  or  negli- 
gence of  tbe  managers  subsequent  to  tbe  election.     (13  Ala.,  83o.) 

Nor  will  a  mistake  by  the  managers  of  the  election  in  counting  the  votes  and  de- 
claring the  results  vitiate  the  election.  Such  a  mistake  should  bo  corrected;  the 
person  receiving  the  highest  number  of  votes  becomes  entitled  to  the  office.  (9  Ala., 
338.) 

In  considering  the  evidence  with  reference  to  particular  precinct  re- 
turns, it  is  first  necessary  to  inquire  by  whom  the  election  was  held,  in 
order  to  determine  what  weight  should  be  given  to  the  returns.  Returns 
are,  as  a  rule,  prima  facie  evidence  of  the  result;  but  if  the  integrity  of 
tl)e  iusi)ectors  is  in  any  way  impeached,  either  by  showing  that  their 
character  is  such  as  to  cast  suspicion  on  their  acts,  or  that  their  belief 
is  that  frauds  upon  elections  are  justifiable,  or  that  the  manner  of  their 
selection  was  such  as  to  indicate  a  purpose  to  procure  a  false  statement 
of  results,  then  the  returns  lose  much  of  the  weight  that  would  other- 
wise attach  to  them.  English  vs.  Peele,  48th  Congress.  In  this  case 
the  committee  says: 

When  once  the  taint  of  fraud  or  unreliability  is  attached  to  the  official  count,  its 
value  is  gone,  and  we  must  look  to  other  sources  for  better  inforniation. 

In  Lowndes  County  the  precinct  inspectors  were  appointed  on  the 
25tli  day  of  September.  A  few  days  afterwards  the  contestee  visiti'd 
the  county,  and  on  the  Cth  day  of  October  an  entire  change  was  in;i(le 
in  the  list  of  insi)ectors  appointed  to  represent  the  Republicans.  The 
first  list  was  satisfactory,  and  made  up  in  the  greater  part  of  intelli- 
gent men.  The  second  list  was  made  without  any  authority  in  the  law, 
and  its  comi>osition  shows  that  the  change  was  made  for  a  dislionest 
purpose.  Judge  Cofifey  (Record, p.  745)  says  that  the  reason  for  this 
change  was  that  the  sheriff  and  several  other  gentlemen  told  him  that 
the  Republican  iiisj)ectors  being  school-teachers,  did  not  wish  to  serve 
and  mix  up  in  politics.  Hence  the  change.  Let  us  see  whether  that 
was  the  true  reason. 

Church  Hill. — First  appointee  attended  for  the  purpose  of  serving 
and  was  not  permitted. 

Gordonsville. — Same. 

Farmersville. — Offered  and  was  refused.     Served  at  Republican  box. 

Hopewell. — Superseded  inspector  was  present  and  served  as  super- 
visor. 

Sandy  Ridge. — Superseded  inspector  tried  to  serve,  and  was  refused. 
Did  serve  as  supervisor  at  the  Republican  box. 

Brooks. — Inspector  superseded,  but  actually  served,  and  the  return 
is  not  questioned. 

Prairie  Hilt. — Superseded  inspector  actually  served  at  one  box. 

Letohatchie. — Superseded  inspector  actually  served  at  box  opened  by 
Republicans. 

Steep  Creek. — Superseded  inspector  tried  to  serve,  and  when  refused 
kept  oatside  list. 

Fintlala. — Superseded  inspector  actually  served  and  made  honest 
return. 

St.  Clair. — Superseded  inspector  actually  served  and  made  honest  re- 


m'dufpie  vs.  turpin.  265 

turn,  but  false  return  of  a  pretended  election  made.  True  return  re- 
jected. 

White  Hall. — Superseded  inspector  served  and  made  honest  return. 

Twelve  of  the  first  list  either  served  or  tried  to  serve,  and  eight  of 
the  new  list  who  served  couhl  neither  read  nor  write.  The  reason  for 
the  removal  of  intelligent  and  trustworthy  Republicans  and  replacing 
them  with  ignorant  and  unreliable  men,  in  pretended  compliance  with 
the  law,  is  evident  from  the  foregoing  statement,  and  the  falsity  of 
Judge  Cottey's  reason  is  made  apparent. 

That  contestee  had  something  to  do  with  this  change  does  not  admit 
of  much  serious  question. 

When  the  law  provides  that  each  of  the  two  political  parties  shall 
have  representation  on  the  election  board  of  inspectors,  it  is  a  provision 
to  prevent  dishonest  partisans  from  making  false  returns ;  and  in  such 
case  the  appointment  of  men  incompetent  to  determine  whether  the 
return  is  honest  or  not  to  represent  the  party  opposed  to  the  appointing 
power,  tends  to  prove  an  intent  to  prevent  that  watchfulness  intended 
to  be  secured  by  the  statute,  and  raises  a  strong  suspicion  (if  it  does 
not  fully  prove)  of  conspiracy  to  falsify  the  returns. 

With  this  proposition  in  view,  we  submit  the  facts  in  regard  to  the 
inspectors  appointed  to  represent  the  Republican  party. 

HA.LE  COUNTY. 

Oreenshorough  precinct. — Inspector  appointed  as  a  Republican ;  could 
neither  read  nor  write. 

Cedarville  precinct. — Colored  inspector  known  to  be  under  the  con- 
trol of  the  Democratic  inspectors,  and  not  couvsidered  a  Republican. 

Carthage  precinct. — All  the  inspectors  were  Democrats. 

Warren's  store  precinct. — Inspectors  all  Democrats. 

Havana  precinct. — Inspectors  all  Democrats. 

Neichorn  precinct. — Inspectors  all  Democrats.  In  this  precinct,  there 
being  no  Republican  inspector  and  no  United  States  supervisor,  the 
Republicans  refused  to  vote,  and  opened  a  poll  of  their  own;  but  the 
Democratic  inspectors  counted  them  as  if  they  had  voted,  and  as  voting 
the  Democratic  ticket.  The  Republican  box  was  not  returned,  and  is 
not  considered. 

WILCOX  COUNTY. 

Snow  Hill  precinct — Inspectors  all  Democrats,  Including  the  colored 
inspector. 

Pine  Apple  precinct. — Inspectors  all  Democrats,  including  an  illiter- 
ate colored  man. 

-  Allentown  precinct.— One  Republican  inspector  who  could   neither 
read  nor  write. 

Bethel  precinct. — One  Republican  inspector  who  could  neither  read 
nor  write. 

White  Hall  precinct. — The  appointed  Republican  inspector  at  this 
precinct  happened  to  be  intelligent  and  was  prevented  from  acting.  A 
Democrat  was  substituted. 

Black  Bluff  precinct. — Inspectors  all  Democrats. 

Minini's  precinct. — Inspec^tors  all  Democrats,  one  of  them  a  colored 
Democrat  who  could  neither  read  nor  write.  An  outside  list  of  Repub- 
lican voters,  kept  by  Republican  watchers,  was  forcibly  seized  by  the 
deputy  sheriff. 


266  m'duffie  vs.  turpin. 

Camden  precinct. — Colored  inspector  says  he  is  a  Republican,  but  he 
is  one  of  those  Republicans  who  vote  the  Democratic  ticket. 

Prairie  Bluff  precinct. — Inspectors  all  Democrats,  one  of  them  a  col- 
ored man  who  could  not  write.     He  testifies  that  he  is  a  Democrat. 

Sedan  precinct. — luspectors  all  Democrats. 

Bailey  Springs  precinct. — The  colored  inspector  could  not  read  or  write, 
and  was  understood  to  be  a  Democrat. 

Behobeth  precinct. — Republican  inspector  could  neither  read  nor  write. 

Canton  precinct. — luspectors  all  Democrats. 

Oeesbend  precinct. — Republican  inspector  could  not  write. 

PEERY   COUNTY. 

Marion  precinct. — Republican  inspector  refused  to  sign  returns,  and 
United  States  supervisor  shows  up  the  fraud. 

Hamburg  precinct. — One  inspector  a  Republican. 

Pole  Cat  precinct. — Same. 

Uniontown  precinct. — Two  boxes. 

Cunningham  precinct. — One  inspector  claimed  to  be  a  Republican. 

Walthall  precinct. — One  inspector  claimed  to  be  a  Rei)ublican,  but  not 
trusted  as  such. 

All  the  inspectors  in  this  county  were  appointed  by  the  Democratic 
county  central  committee. 

DALLAS  COUNTY. 

Martin  Station  precinct. — Inspectors  all  Democrats,  including  the  col- 
ored iDspector,    Fraud  shown  up  by  the  United  States  supervisor. 

Pence  precinct. — All  the  inspectors,  including  the  colored  one.  Demo- 
crats. Box  carried  away  and  not  counted  until  the  day  following  the 
election. 

Mitchell's  3^111  precinct. — Regular  Republican  inspector,  with  two 
qualified  electors,  held  election  and  made  return.  Some  one  else  made 
return  of  another  election.  Neither  return  counted  by  retur  ning  board. 
Here  the  appointing  power  made  a  mistake,  and  appointed  a  Repub- 
lican inspector  capable  of  preventing  fraud.  Hence  the  refusal  of  the 
Democratic  inspectors  to  act  with  him. 

Liberty  Rill  precinct. — Election  held  by  Republican  inspectors,  Dem- 
ocratic inspectors  failing  to  appear. 

Burnsville precinct. — In  this  precinct  a  duplicate  box  was  prepared, 
but  the  Republicans  found  it,  and  it  disappeared.  Hence  the  Demo- 
cratic inspectors  refused  to  count  the  vote  until  the  following  day,  at 
another  place.  It  required  time  to  supply  the  place  of  the  lost  box, 
with  desirable  tickets  in  it. 

Union  precinct. — Republican  inspector  could  neither  read  nor  write. 

Valley  Creek  precinct. — Republican  in8i)ector  could  not  write.  U.  S. 
supervisor  refused  admission  to  the  polling  place. 

Summerjield  precinct, — Republican  inspector  could  neither  read  nor 
write. 

Lexington  precinct. — Inspectors  all  Democrats,  including  a  colored  man 
who  could  neither  read  or  write. 

Smiley  precinct. — Democratic  inspectors  failed  to  appear,  and  election 
held  by  Republican  inspector  as  provided  by  law.  Returns  rejected  by 
county  board,  but  it  is  admitted  that  they  ought  to  be  counted. 

Pine  Flat  precinct. — The  man  appointed  to  represent  the  Republicans 


m'duffie  vs.  turpin.  267 

says  be  is  neither  a  Republican  nor  a  Democrat,  but  is  a  "straight  out." 
He  signs  bis  testimony  with  his  mark. 

Vernon  precinct. — llepublican  inspector  could  not  read  or  write.  Box 
carried  away  before  counting. 

Dublin  precinct. — Election  held  by  two  inspectors.  Republican  could 
not  read  or  write. 

Orvilie  precinct. — Colored  inspector  regarded  as  a  Democrat. 

Sehna  precinct. — One  Republican  inspector,  but  has  the  reputation 
among  Republicans  as  a  tool  of  the  Democrats  in  the  perpetration  of 
election  frands. 

Ulm  Bluff  precinct. — Inspectors  all  Democrats. 

Richmond  precinct. — Republican  inspector  could  not  read  or  write. 
Outside  tally-keeper  beaten  with  a  club  and  list  taken  away.  Arrested 
by  deputy  sheriff. 

Broicn's  precinct. — Republican  inspector  could  not  read  or  write. 
Ballots  counted  by  U.  S.  supervisor:  McDnffie  265,  Turpin  16.  The 
box  containing  returns  tampered  with  and  returns  falsified. 

Chilatchie  precinct. — Returns  rejected  by  county  board,  but  it  is  ad- 
mitted tbat  they  ought  to  be  counted. 

River  precinct. — .Republican  inspector  could  not  read  or  write. 

Carlowville  precinct. — Inspectors  failed  to  appear.  Election  held  by 
electors,  but  not  considered  by  county  board. 

Woodlawn  precinct.— 'RepnhMcan  inspector  could  not  read  or  write. 

Marion  Junction  precinct. — Republican  inspector  could  not  write. 

Old  Town  precinct. — Inspectors  all  white  Democrats. 

ANALYSIS. 

Hale  County.  {Seven  precincts). — In  four  all  inspectors  were  Demo- 
crats. In  two  Republican  could  not  read  or  write,  and  in  the  other 
Republican  inspector  looked  on  as  a  Democrat. 

Wilcox  County.  {Fourteen  precincts). — In  eight  all  inspectors  were 
Democrats.  In  four,  Republican  inspectors  could  not  read  or  write. 
In  one,  Republican  inspector  prevented  from  acting,  and  Democrat  sub- 
stituted; and  in  one,  a  Republican  who  was  distrusted. 

Dallas  County.  {Twenty-two  precincts). — All  Democrats  in  six.  Re- 
publicans, who  could  not  read  or  write,  in  ten. 

Such  uniform  violation  of  the  statute  and  such  uniform  pretense  of 
complying  with  its  terms  by  appointing  colored  Democrats  to  represent 
the  party,  or  by  appointing  illiterate  colored  Republicans,  show  method 
in  the  action  of  the  county  boards,  with  dishonest  designs  behind  the 
method. 

Under  these  circumstances  it  would  be  safe  to  apply  the  rule  adopted 
in  regard  to  this  district  by  the  House  Committee  on  Elections  in  the 
Forty-eighth  Congress,  and  consider  as  trustworthy  only  such  returns 
as  are  sustained  by  oral  testimony.  But  the  committee  has  not  gone 
to  that  extent  in  this  case. 

It  is  worthy  of  remark  that  in  almost  every  precinct  in  the  fourth 
district  there  were  reliable  and  intelligent  Republicans,  competent  to 
discharge  the  duties  of  election  inspectors  and  to  protect  the  voters  to 
tbe  extent  of  securing  an  honest  count  and  a  correct  return. 

Another  feature  of  the  election,  which  can  not  be  overlooked,  was  the 
precaution  everywhere  taken  by  the  Republicans  to  ascertain  with 
accuracy  the  number  of  votes  cast  by  them,  showing  a  universal  dis- 
trust of  the  precinct  officers.    In  many  precincts  complete  poll-lists 


268 


m'dUFFIE   vs.   TURPIN. 


were  kept  by  clerks  selected  for  that  purpose,  voters  going  to  the  ex- 
tent of  refusing  to  vote  unless  such  precaution  was  taken.  On  the  other 
hand,  vigorous  efforts  were  made  by  the  Democrats  in  many  places  to 
prevent  the  keeping  of  such  lists,  under  the  pretense  that  the  keeping 
of  such  lists  was  intimidation.  Deputy  sheriffs  were  active  in  trying  to 
suppress  this  attempt  to  keep  a  check  upon  the  distrusted  election 
officers. 

In  one  instance  the  attempt  of  a  deputy  sheriff,  acting  under  the 
direction  of  the  sheriff  of  the  county,  to  stop  the  further  keeping  of  a 
l)oll  and  to  secure  possession  of  the  one  that  had  been  kept,  resulted 
in  the  murder  of  one  Republican  and  the  wounding  of  two  others  by 
the  deputy  and  his  supporters.  The  murderer  has  escaped  even  the 
formality  of  a  prosecution. 

These  officials  who  were  thus  attempting  to  prevent  the  measures 
taken  by  the  Republicans  to  preserve  the  evidence  of  the  vote  cast, 
well  knew  the  purpose  of  these  measures,  for,  only  two  years  before,  in 
the  election  contest  of  McDuffie  vs.  Davidson,  this  kind  of  evidence  had 
been  used  all  over  the  district  to  show  up  the  frauds  in  the  election  of 
1886.  The  conclusion  is  inevitable  that  these  acts  of  the  Democratic 
oflicials  and  their  aiders  and  abettors  were  done  in  furtiierance  of  con- 
templated frauds. 

The  printed  record  discloses  another  unpardonable  attempt  to  suppress 
testimony.  This  attempt  was  the  deliberate  act  of  contestee  and  his 
attorneys.  Frivolous  objections,  covering  whole  pages  of  the  record, 
and  cross-examinations  of  witnesses  which  would  disgrace  a  police 
court  shyster,  were  the  means  by  which  contestee  and  his  attorney's 
sought  to  use  up  the  time  allowed  to  contestant  in  which  to  take  tes- 
timony to  prove  his  allegations.  This  conduct  resulted,  beyond  a 
reasonable  doubt  from  a  deliberate  purpose  to  suppress  as  much  of  con- 
testant's evidence  as  possible,  and  prevent  a  disclosure  of  the  whole 
truth. 

These  are  some  of  the  general  features  of  the  case  proper  to  be  con- 
sidered in  applying  the  specific  evidence  in  regard  to  the  various  pre- 
cinct returns  brought  into  question. 

The  following  are  the  findings  of  the  committee  of  the  true  state  of 
the  vote  in  the  precincts  named,  contrasted  with  the  returns,  and,  so 
far  as  accessible,  with  the  vote  as  found  in  the  case  of  Craig  vs.  Shelley, 
in  the  Forty-eighth  Congress.  ( Ueport  of  committee  in  Fiftieth  Con- 
gress does  not  give  precinct  findings.) 


LOWNDES  COUNTY. 


Prairie  Hill: 

Connted  by  committee — 

Turpin 110 

McDuffie 75 

Returned — 

Tnrpin 110 

McDuffie 75 

Gordonsville: 

Counted  by  committee — 

Turpin 19 

McDuffie 200 

Ketuiued — 

Turpin 252 

McDuffie 69 

In  Forty-eighth  Congress — 

Democrat 0 

Republican 299 


Sandy  Ridge : 

Counted  by  committee — 

Turpin 103 

McDuffie 203 

Returned — 

Turpin 103 

McDuffie 1 

In  Forty-eighth  Congress- 
Democrat 96 

Republican 207 

Letohatchie: 

Counted  by  committee — 

Turpin 20 

McDuffie 204 

Returned — 

Tnrpin 249 

McDuffie 19 


m'duffie  vs.  turpin. 


269 


Lowndesborough :  * 

Counted  by  committee — 

Tnrpin 41 

McDuffie 140 

Returned — 

Turoin 320 

McDuffie 41 

lu  Forty-eighth  Congress— 

Democrat 44 

Republican 369 

*Inconclusive  evidence  tends  to 
show  some  350  Republican  votes 
in  this  precinct. 

Steep  Creek : 

Counted  by  committee — 

Turpin 37 

McDuffie 171 

Returned — 

Turpin 146 

McDuffie 62 

In  Forty-eighth  Congress — 

Democrat 26 

Republican  184 

Church  Hill: 

Counted  by  committee — 

Turpin 13 

McDuffie 16G 

Returned — 

Turpin 117 

McDuffie 63 


Haynesville : 

Couuted  by  committee — 

Turpin 54 

McDuffie 272 

Returned — 

Turpin 158 

McDuffie 0 

St.  Clair: 

Counted  by  committee — 

Turpin b 

McDuffie 214 

Returned — 

Turpin 8 

McDuffie 0 

In  Forty-eighth  Congress — 

Democrat 6 

Republican 182 

Farraersville: 

Counted  by  committee — 

Turpin 26 

McDuffie 40 

Returned — 

Turpin 26 

McDuffie 0 

Fort  Deposit: 

Counted  by  committee — 

Turpin 0 

McDuffie 0 

Returned — 

Turpin 60 

McDuffie 0 


The  remaining  precincts  in  Lowndes  County  are  not  contested, 
returns  are  as  follows : 


The 


Precincts. 


Benton 

Bragg's 

Hickory  Hill 

Hopewell 

Mt.  Willing 

Brooks's 

Pintlala 

White  Hall 

Total  vote  retamed 


2,131 


Tnrpin. 

McDnflBe. 

91 

60 

98 

31 

98 

22 

90 

54 

160 

113 

17 

283 

21 

330 

4 

216 

1,442 


Committee's  count,  by  above  table,  deducts  1,118  from  Turpin's  vote 
and  adds  1,288  to  McDuflfie's  vote,  leaving  the  true  vote :  Turpin,  1,013; 
McDuffie,  2,730.  McDuffie's  majority  in  Lowndes  County,  1,717.  The 
certified  returns  from  Lowndes  County  in  1886  gave  McDuffie  1,530 
majority,  and  the  House  Committee  on  Elections  found  his  majority  to 
be  larger. 


270 


M'DUFFIE    VS.    TUKPIN. 


WILCOX  COUNTY. 


Snow  Hill: 

Counted  by  committee — 

Turpiu 82 

McDuffie 445 

Retiirued — 

Turpi n 464 

McDuffie  105 

In  Forty-eighth  Ccmorress — 

Democrat 0 

Republican 515 

Alleuton: 

Counted  by  committee — 

Turpin 27 

McDuffie 316 

Returned — 

Turpin 242 

McDuffie 67 

Pine  Apple: 

Counted  by  committee — 

Turpin 180 

McDuffie 211 

Returned — 

Turpin 348 

McDuffie 33 

Bethel: 

Counted  by  committee — 

Turpin 57 

McDuffie 343 

Returned — 

Turpin 385 

McDuffie 15 

White  Hall: 

Counted  by  committee — 

Turpin 47 

McDuffie 84 

Returned — 

Turpin 116 

McDuffie. 26 

In  Forty- eighth  Congress — 

Democrat 25 

Reoublican 71 

Clifton: 

Counted  by  committee — 

Turpin 29 

McDuffie 204 

Returned — 

Turpin 190 

McDuffie 25 

In  Forty-eighth  Congress — 

Democrat 5 

Republican 169 


Black's  Bluflf : 

Counted  by  committee — 

Turpiu 33 

McDuffie 205 

Returned — 

Turpiu 213 

McDuffie 38 

Prairie  Blutf : 

Counted  by  committee — 

Turpin 13 

McDuffie 241 

Returned — 

Turpin "...  245 

McDuffie 14 

Boiling  Springs: 

Counted  by  committee — 

Turpin 42 

McDuffie 200 

Returned — 

Turpin 200 

McDuffie 42 

Rehobeth : 

Evidence  tending  to  show  fraud- 
ulent return,  but  not  sufficient 
to  reject  returns. 

Returned — 

Turpin 161 

McDuffie 25 

In  Forty-eighth  Congress — 

Democrat 0 

Republican 158 

Canton: 

Counted  by  committee — 

Turpin 11 

McDuffie 188 

Returned — 

Turpin 223 

McDuffie 11 

Geesbend : 

Counted  by  committee — 

Turpin 9 

McDuffie 172 

Returned — 

Turpin 170 

McDuffie 15 

In  Forty-eighth  Congress — 

Democrat 0 

Republican 150 


The  returned  vote  of  Wilcox  County,  including  precincts  not  named 
above,  gives  Turpin  4,811,  McDuflSe  607.  By  our  table  we  deduct  from 
Turpin's  returned  vote  2,276  and  add  to  McDufiBie's  returned  vote  2,200. 

Turpin 4,811—2,276=2,535 

McDuffie 607+2,200=2,807 

Majority  for  McDuffie  in  Wilcox  County 273 


m'duffie  vs.  turpin. 


271 


PEKUY  COUNTY. 


Hamburg : 

Counted  by  committee — 

Turpin 35 

McDuffie 256 

Eeturned — 

Turpin 212 

McDuffie 83 

Marion : 

Counted  by  committee — 

Turpin 83 

McDuffie 583 

Returned — 

Turpin 697 

McDuffie-. 86 

Uniontown : 

Counted  by  committee — 

Turpiu 210 

McDuffie 955 


Uniontown — continued : 

Return  (same  in  two.  boxes). 
Counted  by  returning  board — 

Turpiu 210 

McDuffie 2 

Perry  ville : 

Counted  by  committee — 

Turpin 0 

McDuffie 0 

Return — 

Turpin 142 

McDuffie 41 

(Throw  out,  as  neither  returns  nor 
poll-lists  were  signed  and  no 
proof  made.) 


Perry  Coanty  vote  as  returned  gives  Turpin  2,961,  McDuffie  650. 
Deduct  by  our  table  from  Turpin  973  and  add  to  McDuffie  1,582,  as 
follows: 

Turpin 2,761—     933  =  1,828 

McDuffie... 650  +  1,582  =  2,232 

McDuffie's  majority  in  Perry  County 404 

HALE  COUNTY. 


Greensborough : 

Counted  by  committee — 

Turpin 210 

McDuffie 693 

Returned — 

Turpin 577 

McDuffie.   330 

Forty-eighth  Congress — 

Democrat 194 

Republican 630 

Hollow  Sqnare : 

Counted  by  committee — 

Turpin 59 

McDuffie 475 


Hollow  Square — continaed: 
Returned — 

Turpin 362 

McDuffie 169 

Cedarville : 

Counted  by  committee — 

Turpiu 27 

McDuffie 490 

Returned — 

Turpin 364 

McDuffie 153 


Eeturned  vote  of  Hale  County  gives  Turpin  3,170,  McDuffie  1,220. 
We  deduct  1,007  from  Turpin  and  add  1,006  to  McDuffie,  as  follows : 

Turpin ■...  3,170—1,007=2,163 

McDuffie 1,220+1.006=2,226 

McDuffie's  majority 63 


272 


m'duffie  vs.  turpin. 


DALLAS  COUNTY. 


Martin's  Station : 

Counted  by  committee — 

Turpin 87 

McDuffie 324 

Returned — 

Turpin 383 

McDuffie 28 

Forty-eij^lith  Congress — 

Democratic 1 

Republican    304 

Forty-seventli  Congress — 

Democratic 16 

Republican 384 

Pence : 

Counted  by  committee — 

Turpin 8 

McDuffie 219 

Returned — 

Turpin 188 

McDuffie 20 

Forty-eightli  Congress — 

Democratic 0 

Republican 150 

Mitchell's  Mill: 

Counted  by  committee — 

Turpin 0 

McDuffie 345 

Returned — 

Turpin 30 

McDuffie 0 

Forty-eighth  Congress — 

DemocraT;ic 0 

Republican 307 

Liberty  Hill : 

Counted  by  committee — 

Turpin 0 

McDuffie 197 

Returned — 

Tur])in 0 

McDuffie 0 

Burnsville: 

Counted  by  committee — 

Turpin 60 

McDuffie 288 

Returned — 

Turpin 475 

McDuffie 22 

Union : 

Counted  by  committee — 

Turpi  u 44 

McDuffie 336  | 

Returned —  | 

Turpin 299 

McDuffie 85 

Forty-eighth  Congress — 

Democratic 0 

Republican 269 

Valley  Creek : 

Counted  by  committee — 

Turpin 60 

McDuffie 382 

Returned — 

Turpin 401 

McDuffie -. 89 

Summerfield : 

Returned — 

Turpin 162 

McDuffie 30 


Summerfield — Continued. 

Forty -eighth  Congress — 

Democratic 0 

Republican 250 

(We    count    this    as    returned,    but 
there    are    strong    indications    of 
fraud.) 
Smiley: 

Counted  by  committee — 

Turpin 0 

McDuffie 86 

Forty-eighth  Congress — 

Democratic 30 

Republican Ill 

(No  return  counted.) 
Pine  Flat: 

Counted  by  committee — 

Turpin 20 

McDuffie 140 

Returned — 

Turpin 249 

McDuffie 80 

Forty-eighth  Congress — 

Democratic 14 

Eepublican 204 

Vernon : 

Counted  by  committee — 

Turpin 19 

McDuffie 121 

Returned — 

Turpin 139 

McDuffie 8 

Dublin : 

Counted  by  committee — 

Turpin 22 

McDuffie 49 

Returned — 

Turpin 65 

McDuffie 22 

Selma : 

Returned — 

Turpin 799 

McDuffie 434 

(We  leave  as  returned,  but  have 
serious  doubts  as  to  the  hon- 
esty of  the  count.) 
Elm  Bluif: 

Counted  by  committee — 

Turpin 15 

McDuffie 76 

Returned — 

Turpin 73 

McDuffie 28 

Forty-eighth  Congress — 

Democratic 5 

Republican 72 

Brown's : 

Counted  by  committee — 

Turpin 16 

McDuffie 249 

Returned — 

Turpin 235 

McDuffie 90 

Forty-eighth  Congress — 

Democratic 10 

Republican 304 


m'duffie  vs.  turpin. 


273 


Chillatcliie: 

Counted  by  committee — 

Turpin 0 

McDu.'^e 144 

(No  roturus  counted.) 

River : 

Counted  l>v  committee — 

Turpin 17 

McDulBe 200 

Returned — 

Turpin 283 

McDuffie 14 

Forty-eighth  Congress — 

Democratic 0 

Republican 133 

Carlowville : 

Counted  by  committee— 

Turpin 0 

McDuffie 101 

(No  return  counted.    Conceded.) 

Woodlawn : 

Counted  by  committee— 

Turpin 40 

McDuffie 136 


Woodlawn — Continued. 

Returned — 

Turpin 159 

McDuffie 17 

Marion  Junction : 

Counted  by  committee — 

Turpin 9 

McDuffie 72 

Returned — 

Turpin. ..» 72 

McDuffie 27 

Old  Town : 

Counted  by  committee — 

Turpin 20 

McDuffie 150 

Returned — 

Turpin   271 

McDuffie 5 

Boykins: 

Counted  by  committee — 

Turpin 17 

McDuffie 110 

Forty-eighth  Congress  — 

Democratic 0 

Republican 93 

(Returns  not  counted  by  board.) 

Keturned  vote  of  Dallas  County  gives  Turpiu  5,705,  McDuffie  1,706. 
We  deduct  from  Turpin  2,838  and  add  to  McDuffie  3,190. 

Turpin 5,705—2,838=2,867 

McDuffie 1,706  +  3,190  =  4,896 

McDuffie's  majority 2,029 


Total  majority  for  McDuffie  in  the  district 4,481 

The  following  is  a  more  extended  abstract  of  the  testimony  on  which 
the  above  findings  are  based  : 

L0WNDE8   COUNTY. 

Gordonsville. — In  this  precinct  the  first  appointed  Republican  in- 
spector was  unlawfully  superseded,  and  a  Republican  who  could  not 
read  or  write  substituted.  It  is  shown  in  evidence  that  there  are  from 
300  to  400  Republicans  in  the  precinct  and  only  20  to  25  Democrats, 
It  is  also  shown  that  at  least  200  Republicans  voted  the  straight  Re 
publican  ticket.  At  about  2  o'clock  p.  m.  a  recess  was  taken,  and  a 
Democratic  inspector  took  the  ballot-box  into  an  adjoining  room,  against 
the  protest  of  the  United  States  supervisor,  and  remained  alone  witli 
it  eleven  minutes  by  the  watch.  When  the  votes  were  counted  there 
were  found  to  be  3  less  in  the  box  than  there  were  names  on  the 
)oll-list,  and  three  tickets  were  picked  up  from  the  floor  and  put  into 
[ihe  box.  When  the  tickets  were  counted  there  was  found  to  be  a  large 
lumber  of  tickets  in  the  box  with  the  Republican  electors  and  Turpin's 
lame  on  them.  These  tickets  were  of  a  different  size  and  on  a  different 
tind  of  paper  from  the  regular  Republican  tickets,  and  were  easily  dis- 
^nguishable. 

The  United  States  supervisor,  who  received  the  tickets  from  the 
jroters  a  good  portion  of  the  day,  swears  that  no  such  tickets  were 
^oted.  The  number  of  Republican  tickets  voted,  the  fact  that  these 
)ogus  tickets  were  in  the  box,  although  not  handed  in  by  the  voters, 
shows  that  this  box  was  stuffed,  and  destroys  the  integrity  of  its  con- 
tents. We  are  left  to  ascertain  the  vote  by  other  evidence,  which 
shows  that  there  were  at  least  200  Republican  votes,  and  the  notice  of 
contest  concedes  19  Democratic  votes. 


H.  Mis.  137- 


-18 


274  m'duffie  vs.  turpin. 

iJ'o  attempt  was  made  to  sustain  the  return.  Probably  the  reason 
for  stuffing  the  box,  instead  of  falsifying  the  count,  was  the  presence 
of  an  intelligent  supervisor.  The  material  evidence  in  regard  to  this 
precinct  is  found  on  pages  728,  733,  735,  and  744  of  the  record. 

iSandy  Ridge. — At  this  precinct  two  polls  were  opened,  within  75  yards 
of  each  other.  The  Democratic  inspectors  refused  to  allow  the  regu- 
larly appointed  Republican  inspector  to  act  with  them,  and  also  re- 
fused to  allow  the  United  States  supervisor  to  act;  whereupon  they 
organized  a  poll  in  conforinity  with  the  statute.  The  Republicans  voted 
at  one  poll,  the  Democrats  at  the  other,  and  two  returns  were  made. 
The  one  returned  by  the  Democratic  inspectors  was  counted,  the  other 
not.  We  count  both,  as  showing  the  votes  cast  by  those  entitled  to 
vote,  and  hold  that  the  circumstances  as  detailed  in  the  evidence  justi- 
fied the  action  of  the  Republicans  in  holding  a  separate  poll.  The  pre- 
cinct has  some  250  Republicans,  and  possibly  130  Democrats  in  it.  The 
result  here — and  there  is  no  conflict  in  the  evidence — shows  that  when 
there  is  a  fair  count  the  Republicans  are  seen  to  adhere  to  their  party. 

Letohatchie. — As  in  Sandy  Ridge,  there  were  two  polls  at  this  pre- 
cinct, organized  under  precisely  similar  circumstances.  The  Repub- 
licans had  no  faith  in  the  Democratic  inspectors,  and  the  result  shows 
that  their  distrust  was  well  grounded,  for  at  tl><3  Democratic  poll  the 
fraud  is  so  patent  that  it  is  beyond  any  question.  The  poll-list  re- 
turned proves  this.  It  will  be  found  on  pages  679,  O.'-O  of  the  record. 
Commencing  with  Ko.  56,  it  shows  that  the  remaining  voters — 2Q:i  being 
returned  as  voting — voted  in  alphabetical  order,  with  au  occasional 
name  inserted  out  of  order.  Of  course  this  is  a  bare-faced  fraud,  and 
completely  destroys  the  integrity  of  this  poll.  It  is  clearly  proven  that 
numbers  of  the  persons  whose  names  appear  on  this  list  did  not  vote 
at  the  poll,  and  others  did  not  then  live  in  the  beat.  The  truth  is  these 
clerks  and  inspectors  simply  copied  the  old  registry,  and  put  tickets  in 
the  box  to  correspond.  And  yet  tlie  Democratic  inspectors,  with  tbis 
list  staring  them  in  the  face,  boldly  swore  that  they  held  an  honest 
election,  illustrating  the  tone  of  morals  in  that  community  as  applied 
to  elections.    The  committee  invite  inspection  of  this  poll-list. 

There  are  in  this  precinct  about  225  colored  voters  and  75  white 
voters.  One  witness,  on  cross-examination,  when  asked  why  he  did 
not  vote  at  the  Democratic  box,  made  a  significant  answer :  "Because 
they  always  counted  me  out." 

Lowndesborough. — The  returns  for  this  precinct  were  :  Tur[)in,  320;  Mc- 
DuflBe,  41.  The  evidence  shows  that  the  precinct  contains  about  400 
colored  voters  and  some  fifty  white  voters,  that  some  350  colored  men 
attended  the  election  and  voted,  and  that  most  of  them  voted  the  Re- 
publican ticket.  One  hundred  and  forty  make  affidavit  that  they  so 
voted.  It  is  true  that  these  are  ex  parte  affidavits,  the  introduction  of 
which  can  only  be  justified  on  the  ground  that  contestee  deliberately 
prevented  the  testimony  from  being  taken  in  the  lawful  and  regular 
way.  Other  evidence  shows  that  of  the  350  who  voted,  a  great  part 
voted  for  contestant. 

There  being  only  50  white  voters  in  the  precinct,  it  follows,  if  the 
returns  are  true,  that  at  least  270  colored  men  voted  Democratic,  while 
only  41  voted  Republican,  or  more  than  six  to  one.  This  of  itself  is 
almost  incredible,  taken  in  connection  with  the  proved  fact  that  only  a, 
few  colored  men  vote  the  Democratic  ticket. 

The  inspectors  here,  including  the  colored  man,  were  all  Democrats, 
in  violation  of  the  statute.  None  of  the  clerks  or  inspectors  were 
called  to  sustain  this  return.    Two  witnesses  were  called  to  show  that 


I 


m'duffie  vs.  turpin.  275 

a  good  many  of  the  colored  men  voted  the  Democratic  ticket.  One  of 
tbem,  who  was  active  in  the  interest  of  the  Democratic  party,  went  so 
far  as  to  say  that  he  thought  to  the  best  of  his  belief  that  about  as  many 
voted  for  Turpin  as  for  McDuffle.  This  but  confesses  the  claim  that 
the  returns  did  not  show  the  true  state  of  the  vote  (p.  539.) 

Steep  Creek, — Returns  show :  Turpin,  146 ;  McDuffie,  62. 

Milton  D.  Alexander,  an  intelligent  colored  man,  was  appointed 
Eepublican  inspector  for  this  beat,  but  was  superseded  by  the  subse- 
quent appointment  of  an  illiterate  colored  Democrat.  He  went  to  the 
polls  and  asked  to  serve,  but  was  refused.  He  and  an  assistant  distrib- 
uted the  tickets,  and  at  the  request  of  the  voters  had  a  complete  poll 
list  kept  of  those  who  voted  the  Eepublican  ticket,  showing  the  Repub- 
lican vote  as  we  count  it.  This  poll-list  was  introduced  in  evidence, 
and  then  stolen  while  the  testimony  was  being  taken.  The  reason  for 
keeping  this  outside  poll  is  thus  explained  by  Alexander: 

We  were  fearing  to  be  coiinted  out  by  the  Democrats,  *  »  *  and  ^e  wanted  to 
know  precisely  how  many  Republican  votes  were  cast  for  him  (McDuiiie)  in  that 
precinct,  which  was  our  object  in  keeping  the  outside  poll.  *  »  *  "We  expected  a 
cantest,  and  expected  to  be  counted  out  (pages  693,  (^^S). 

James  Gillind  (page  707)  describes  fully  the  method  of  keeping  the 
poll,  and  the  arrangement  made  beforehand  with  the  Eepublican 
voters  to  enable  them  to  prove  the  true  vote.  There  are  from  200  to 
225  colored  voters  and  from  25  to  30  white  voters  in  the  beat ;  189  col- 
ored voters  of  this  beat  make  affidavit  that  they  voted  the  Eepublican 
ticket. 

Here  we  have  170  voters  declaring  at  the  polls  their  intention  to 
vote  the  republican  ticket,  taking  the  ticket  from  one  chosen  by  them 
to  issue  tickets  by  pre-arrangement,  holding  their  tickets  in  such  a 
way  that  they  could  be  seen  until  voted,  and  then  having  their  names 
registered  so  as  to  be  able  to  prove  how  they  voted.  These  acts  are  a 
part  of  the  res  gcstce  of  the  election — the  deliberate  declaration  of  the 
voters  while  engaged  in  the  act  of  voting,  not  only  of  how  they  voted 
but  of  their  utter  want  of  confidence  in  the  election  board  upon  which 
they  had  no  representation. 

In  this  precinct  one  of  the  inspectors  was  called  as  a  witness  for  con- 
testee.  He.  shows  that  Cheek,  the  colored  inspector,  voted  the  Demo- 
cratic ticket,  but  that  to  convince  the  Eepublicans  that  all  was  honest, 
they  had  this  inspector,  Cheek,  receive  and  deposit  in  the  box  all  the 
ballots.  He  took  the  ballots  from  the  box,  but  another  inspector,  not 
called,  read  the  names.  The  clerk  who  kept  the  tally  is^ called.  An 
outsider  is  called  to  show  that  some  colored  men  changed  their  ballots 
after  receiving  them  from  Alexander,  in  which  he  does  not  agree  with 
the  inspector.  The  evidence  of  fraudulent  returns,  taken  in  conjunc- 
tion with  the  general  evidence,  is  conclusive,  and  we  so  find. 

Church  Hill. — Eeturn:  Turpin,  117;  McDuffie,  63.  Committee  count 
McDuffie,  166;  Turpin,  13.  The  evidence  shows  that  there  are  only  12 
to  14  wnite  men  in  this  beat;  that  formerly  there  were  a  few  colored 
Democrats  in  the  beat  but  none  at  the  present  time;  that  the  intelligent 
Eepublican  insi)ector  first  ai)poiuted  was  superseded  and  an  illiterate 
one  substituted ;  and  that  the  one  first  appointed  attended  the  polls 
and  superintended  the  work  of  putting  in  the  Republican  votes,  having 
an  outside  poll  kept.  This  poll  had  107  names  on  it,  but  one  was 
erased  because  the  watchers  did  not  see  his  hand  with  the  ticket  in  it 
from  the  time  he  started  with  the  ticket  until  it  was  deposited  with  the 
inspector. 

Several  meetings  were  held  by  the  Republicans  before  the  election. 


276  m'duffie  vs.  turpin. 

at  wblch  arrangeineuts  were  made  as  to  liow  the  voters  were  to  act,  in 
order  that  a  complete  record  might  be  kept  of  their  vote,  in  ant«;ipation 
ot  the  counting  out  process  witli  which  they  were  all  ftimiliar. 

As  an  illustration  of  the  methods  employed  by  the  Republicans  here 
and  elsewhere,  to  preserve  the  evidence  of  the  vote,  we  insert  the  testi- 
mony of  0.  F.  Hrubowski,  the  manager  at  this  poll  (page  698)  : 

C.  F.  HRUBOWSKI,  beiug  called  and  sworu,  deposes  and  saith  : 

Q.  State  your  name,  your  age,  your  residence,  and  political  party  to  whicli  you 
belong, — A.  My  name  is  Charles  F.  Hrubowski ;  mj'  age  is  43  years  old  ;  I  reside  iu 
Church  Hill  beat,  No.  2,  in  Lowndes  Co.,  Ala.;  my  race  is  colored,  and  I  belong  to 
the  Republican  party. 

Q.  Did  you  attpud  the  election  iu  your  precinct  on  the  6th  day  of  Nov.,  1888,  to 
elect  a  Congressman  for  the  51st  Congress  for  this  district,  and  Presidential  electors  ? — 
A.  I  did  attend  such  an  election. 

Q.  Who  held  that  election — that  is,  who  were  the  inspectors,  clerks,  and  returning 
officers? — A.  Mr.  J.  R.  Dudley,  N.  B.  Lever,  and  Cap.  Dudley  were  inspectors;  W. 
N.  May  was  the  clerk,  and  the  returning  officer  was  George  Earnest,  and  if  there  was 
any  other  clerk  I  don'c  know  who  it  was. 

Q.  If  yon  had  any  notice  or  information  of  the  fact  that  the  probate  judge,  the 
clerk  of  the  circuit  court,  and  sheriff  of  the  county,  or  that  any  two  of  the.ii  appointed 
you  as  one  of  the  inspectors  of  said  election  in  said  precinct,  state  how  you  got  that 
information. — A,  I  did  get  it  through  the  Hayneville  Examiner,  but  don't  know 
whether  the  sheriff's  name  was  signed  to  it  or  not. 

Q.  The  witness  was  shown  exhibit  A  and  asked  if  that  was  a  substantial  copy  of 
the  notice  spoken  of  above. — A.  It  was. 

Q.  Did  you  as  an  inspector  so  appointed  offer  or  prepare  to  assist  in  holding  said 
election? — A.  I  did. 

Q.  Why  did  you  not  assist  in  holding  said  election  ?  State  the  reason  why  fully. — 
A.  I  was  objected  by  the  said  insi^ectors  holding  said  election,  that  I  was  not  one  of 
the  regular  appointed  that  was  appointed  the  last  time,  but  I  insisted  on  staying  in 
there  any  way.  They  said  that  if  I  did  they  would  open  the  door  and  let  everybody 
come  in. 

Q.  Do  you  know  how  many  Republican  votes  were  cast  for  J.  V.  McDuffie  for  a 
seat  in  Congress  for  that  election  on  that  day?  If  you  do,  state  how  many. — A.  I 
do  know.  There  was  a  166  to  my  certain  knowledge.  There  was  a  167  cast  by  one 
doubtful. 

Q.  Now  commence  and  state  in  detail  fully  and  particularly  how  you  know  this 
fact.  State  every  fact  within  your  knowledge  tending  to  show  that  166  Republicans 
voted  for  said  McDuffie  on  that  day. — A.  The  way  was  this:  We  had  a  committee  ap- 
pointed to  act  as  clerks  and  act  as  inspectors  to  make  a  list  which  we  made  outside, 
so  that  we  could  tell  how  many  Republican  votes  were  cast  there,  and  I  issued  a 
hundred  and  sixty-seven  (167)  tickets,  with  the  arrangement  that  each  man  or  voter 
should  carry  his  ticket  in  his  hand  clear  from  his  body  or  pocket,  so  that  he  wouldn't 
have  any  chance  to  change  his  ticket.  Even  if  he  had  one,  there  was  no  other  tickets 
but  Republican  tickets  used  among  the  Republicans  that  day  to  my  knowledge.  We 
voted  very  slow  and  carefully,  so  that  we  might  be  able  to  establish  the  fact  to  that 
election  that  day.  This  arrangement  had  been  made  several  weeks  before  among 
the  Republicans  and  all  had  agreed  to  go  into  that  arrangement  by  holding  several 
meetings  beforehand. 

Q.  Why  did  you  go  to  this  trouble  to  make  an  outside  poll-list  to  ascertain  how 
many  Republicans  voted  for  McDuffie  there  that  day  when  the  clerks  in  the  house 
were  making  a  poll-list? — A.  We  did,  because  it  was  said  that  we  could  never  get 
the  count  of  the  votes  that  were  cast  there,  and  we  wanted  McDuffie  to  get  what 
votes  were  cast  for  him,  as  he  was  the  choice  of  the  people  there  as  a  candidate  for 
Congress.  He,  himself,  was  down  there  and  they  all  promised  him  that  they  would 
vote  for  him. 

Q.  What  position  did  you  and  those  who  made  that  poll-list  occnpy  at  the  time 
said  poll-list  was  made  in  reference  to  the  door  or  window  where  the  ballots  were 
received  by  the  inspectors,  and  how  far  it  was  from  said  window  or  door  ? — Ans.  The 
election  was  held  at  the  Baptist  Church,  the  ballots  were  taken  in  at  the  front  porch 
of  the  church,  beside  of  the  front  door,  and  where  we  sat  to  keep  this  list  was  right 
in  front  of  the  door  or  window,  about  30  feet  or  more  from  the  steps. 

Q.  At  what  time  was  the  name  of  each  voter  taken  down  on  said  list  in  reference 
to  the  time  when  the  ballot  was  given  to  him ;  was  it  before  or  after  it  was  given  to 
him? — Ans.  The  names  were  written  after  the  tickets  were  given  to  him  ;  each  man 
stood  there  until  his  name  was  written  ;  his  instruction  was  given  to  him  as  to  how 
he  should  carry  his  ticket  to  the  polls  or  to  where  they  received  them. 

Q.  After  one  of  the  voters  received  his  ballot  and  started  to  deposit  it  at  the  polls 


m'duffie  vs.  tukpin.  277 

did  you  give  out  any  other  ticket  until  it  was  banded  to  tbd  inspector  ? — Ans.  We 
generally  waited  until  after  he  got  to  the  window,  the  place  where  he  handed  in  his 
ticket. 

Q.  Did  you  or  not  carefully  watch  the  hand  of  the  voter  that  held  the  ticket  from 
the  time  that  you  gave  him  the  ticket  until  he  deposited  it  with  the  inspectors  iu 
the  house? — Ans.  I  did:  I  made  it  my  particular  business  to  do  that. 

Q.  You  have  said  that  you  instructed  each  voter  that  you  gave  a  ticket  what  posi- 
tion to  hold  bis  baud  in  which  he  held  the  ticket  until  he  deposited  the  ticket ;  please 
show  the  commissioner  what  the  position  was  beheld  the  baud? — Ans.  They  carried  it 
in  their  left  baud  out  from  their  body. 

Q.  Was  this  the  way  you  instructed  them  to  hold  it? — A.  It  was. 

Q.  Did  you  give  your  individual  attention  to  each  voter  from  the  time  he  took  the 
ticket  until  be  deposited  it? — A.  I  did  to  the  best  of  my  recollection. 

Q.  If  any  one  or  more  of  them  disobeyed  your  instructions,  state  how  many,  and 
what  you  did  when  you  detected  any  variation  in  the  manner  of  carrying  the  ticket  ? — 
A.  I  don't  know  of  but  one,  and  when  I  saw  him  put  his  hand  in  his  vest  pocket  I 
had  bis  name  erased  from  the  list. 

Q.  Did  you  issue  all  of  these  166  ballots  and  delivered  them  to  the  voters  ? — A.  I 
don't  issue  them  all,  but  was  issued  in  my  presence  by  a  man  in  my  presence,  under 
my  observation. 

Q.  Have  you  that  poll-list  with  you  ? — A.  I  have. 

Q.  Please  hand  it  to  the  commissioner. 

It  was  handed  to  the  commissioner  and  asked  to  be  marked  Exhibit  C.  It  was 
marked  Exhibit  C  by  the  commissioner. 

Q.  Is  this  the  identical  poll-list  spoken  of  in  this  deposition  ? — A.  It  is. 

Adjourned  until  to-morrow  morning,  Jan.  23rd,  1889. 

T.  L.  S.  Grace, 
2f.  F.  and  Commissioner. 

Met  pursuant  to  adjournment  and  resumed  examination. 

The  above  testimony  of  Charles  F.  Hrobowski  was  taken  in  the  absence  of  the  con- 
testee  and  bis  attorney.  .7.  L,  Holmes,  attorney  for  contestee,  being  now  present  and 
having  read  over  all  of  said  Charles  F.  Hrobowski's  testimony,  makes  the  following 
objections  to  the  answer  of  the  witness  :  "  I  got  notice  of  my  appointment  as  inspector 
through  the  Hayneville  Examiner." 

(Contestee  objects  on  the  ground  that  it  is  illegal  and  hearsay,  said  notice  in  said 
paper  not  being  authorized  by  law.  To  the  question,  "  Do  you  know  how  many  Re- 
publican votes  were  cast  for  J.  V.  McDuffie  for  a  seat  in  Congress,  &.c.  ?"  Contestee 
objects  to  this  question  on  the  grounds  that  the  returns  as  certified  to  by  the  inspect- 
ors and  the  ballots  themselves  are  the  best  evidence  of  votes  cast  for  J.  V.  McDuffie ; 
therefore,  this  question  call  for  secondary,  illegal,  and  hearsay  testimony.  Contestee 
objects  to  the  pretended  poll-list  made  Exhibit  C,  on  the  ground  that  it  is  the  act  of 
a  private  party  ;  that  it  is  against  the  laws  of  Ala.  to  make  such  a  list;  that  it  is  an 
invasion  of  the  secrecy  of  the  ballot;  that  it  is  not  sworn  to  or  proven  by  the  party 
who  made  said  list,  nor  by  any  attesting  witness  thereto  ;  and  objects  on  the  further 
grounds  that  said  has  not  been  in  the  custody  of  any  officer,  but  has  been  since  it 
has  been  made  up  to  this  day  in  the  custody  of  irresponsible  private  parties  to  the 
contestee  unknown,  and  on  the  further  grounds  that  the  poll-list  made  by  the  in- 
spector is  the  official  and  legal  poll-list,  and  the  ballots  cast  at  said  election,  being 
of  easy  access  to  contestant,  are  the  best  evidence  of  how  many  votes  were  cast  and 
for  whom  they  were  cast.) 

Cross-examination  by  J.  L.  Holmes,  attorney  for  contestee: 

Q.  What  is  the  race  and  politics  of  each  of  the  inspectors  ? — A.  J.  R.  Dudley  and 
H.  B.  Leuer  are  white  Democrats,  and  Cap  Dudley  is  a  colored  man,  and  I  suppose  is 

Republican.     I  have  never  known  him  to  vote  any  other  way. 

Q.  Can  Cap  Dudley  read  ? — A.  I  think  he  can  read. 

Q.  Did  you  ever  receive  personally  any  notice  from  the  sheriff  of  Lowndes  Co.,  or 
^ny  other  person  officially,  of  your  appointment  as  inspector? — A.  I  did  not. 

Q.  Have  you  any  positive  knowledge  that  J.  V.  McDuffie  received  166  votes  other 

lau  the  knowledge  you  got  from  the  list  of  the  voters  which  was  kept  on  the  outside 
If  the  bouse  ? — A.  I  have. 

Q.  Who  made  said  list  of  voters  that  was  kept  on  the  outside  f — A.  James  Mo- 
iurkie  and  Fred  Lewis. 

Q.  Are  James  Moburkie  and  Fred  Lewis  now  living  in  Lowndes  Co.  ? — A.  James 
loburkie  is,  but  Fred  Lewis  is  not  now,  but  was  then. 

Q.  Did  you  actually  have  your  eye  on  the  hand  of  Fred  Lewis  and  James  Mo- 
burkie when  each  one  of  the  166  names  were  actually  written  on  said  list? — A.  I 
couldn't  say  that  I  saw  the  hands  all  the  time  while  they  were  writing,  but  was 
attentive  as  I  could  be  all  the  time. 


278  m'duffie  vs.  turpin. 

Q.  Then  yon  can't  swear  positively  that  you  sf||W  each  and  every  one  of  the  166 
names  written  on  said  list? — A.  I  couldn't  say  that  I  saw  the  hand  that  written  every 
name,  but  was  present  all  the  time. 

Q.  How  many  Rei)ublican  votes  did  you  issue  yourself! — A.  I  issued  the  biggest 
portion  of  the  100,  but  did  not  issue  all  of  them. 

Q.  Yon  stated  in  your  direct  examination  that  you  issued  167  tickets,  now  yon  state 
that  you  did  not  issue  all  of  the  167  tickets.  Which  statement  is  true  and  which  is 
false  f— A.  I  had  control  of  tbe  tickets,  and  I  bad  a  man  to  help  nie  distribute  them. 
I  did  not  say  in  my  direct  examination  that  I  distributed  all  of  them  myself. 

Q.  Do  you  swear  upon  your  oath  that  you  actually  had  your  eye  on  the  hand  upon 
each  of  the  167  voters  from  the  time  said  voter  received  said  ticket,  while  he*  was 
having  his  name  registered  and  while  he  was  walking  to  the  ballot-box  and  until  he 
put  the  ticket  in  the  band  of  the  inspector? 

(Contestant  objects  to  the  form  ot  the  question  ;  particularly  that  part,  "  do  you 
Bwear  upon  your  oath,"  on  the  ground  that  it  is  an  attempt  to  bulldoze,  and  tends  to 
embarrass  and  confuse  the  witness,  as  the  witness  knows  he  is  under  oath.) 

A.  I  do  swear  to  the  best  of  recollection  that  I  saw  the  hand  of  every  voter  until 
he  got  to  the  window  where  he  handed  in  his  ticket,  but  couldn't  see  the  inspector 
receive  it. 

Q.  How  could  you  have  your  eye  actually  upon  the  hand  of  the  voter  in  which  the 
ticket  was  held  aud  at  the  same  time  have  your  eye  upon  the  hand  that  wrote  the 
names  down  on  the  list  kept  on  the  outside? 

(Contestant  objects  to  the  question  on  the  ground  that  it  assumes  a  fact  which  is 
false,  the  witness  not  having  related  it  in  that  way ;  that  instead  of  making  that 
statement  he  has  stated  in  the  presence  of  Wm.  Holmes,  as  the  commissioner,  that  he 
could  not  say  that  he  had  his  eye  on  the  clerk  when  he  wrote  every  name;  and  as 
further  stated,  that  he  had  the  name  of  each  voter  written  down  before  the  voter 
started  to  the  ballot-box.) 

A.  The  arrangement  that  neither  voter  started  away  from  where  his  name  was 
taken  until  the  voter  that  was  ahead  of  him  carried  his  ticket  to  the  window,  and 
my  recollection,  I  thought  I  saw  the  most  of  the  transaction  of  the  writing,  but 
couldn't  say  that  I  saw  it  at  all. 

Q.  Did  you  actually  have  your  eye  apon  the  hand  of  the  clerk  when  he  wrote  a 
single  one  of  the  166  names  on  that  list  ?— A.  I  did ;  I  am  satisfied  I  saw  a  good  many 
of  them  written. 

Q.  If  you  had  your  eye  on  the  hand  of  the  clerk  when  he  was  writing  a  name  on 
said  list^  how  could  you  at  the  same  instant  of  time  have  your  eye  on  the  hand  of  the 
voter  that  held  the  ticket? — A.  To  the  best  of  my  recollection  I  had  my  eye  on  both 
at  the  same  time. 

Q.  What  man  beside  yourself  gave  ont  Eepublican  tickiets  that  day  ? — A.  I  think  it 
was  Elbert  Marshall. 

Q.  Was  Elbert  Marshall  distributing  tickets  at  the  same  time  that  you  was  ? — A.  I 
don't  think  he  was;  when  I  wasn't  distributing  he  was. 

Q.  Did  yon  remain  right  there  with  the  clerk  the  entire  time,  from  the  time  the 
polls  opened  in  the  morning  until  they  closed  in  the  evening? — A.  I  was  not  right  in 
the  presence  of  the  clerk  all  the  time,  but  was  on  the  ground  all  the  time  with  the 
exception  of  a  little  while,  and  then  there  was  no  voting  at  that  time. 

Q.  You  stated  in  your  direct  examination  that  there  was  no  tickets  but  the  Repub- 
lican tickets  used  among  the  Republicans;  do  you  mean  by  this  that  there  was  posi- 
tively no  other  or  that  you  saw  no  other  ? — A.  I  saw  no  otiier  to  my  knowledge. 

Q.  Could  you  read  the  names  printed  on  the  ballots  from  where  you  stood  to  the 
"window  where  the  votes  were  received  ? 

(Contestant  objects  to  this  question  because  it  calls  for  immaterial  and  irrelevant 
evidence.) 

A.  I  don't  suppose  I  could ;  I  never  tried  to  do  it. 

Q.  You  stated  in  your  direct  examination  that  each  voter  carried  his  ballot  to  the 
ballot-box  in  his  left  hand  ;  are  positive  that  every  one  of  the  166  so  carried  their 
ballots  f 

(Contestant  objects  to  this  question  on  the  ground  that  it  assumes  a  fact  that  the 
■witness  has  never  stated ;  that  the  witness  has  never  said  that  he  saw  the  voter  carry 
his  ticket  to  the  ballot-box.) 

A.  To  the  best  of  my  recollection  every  one  of  them  carried  their  tickets  in  their 
left  hands;  some  may  have  had  them  in  their  right  hand,  but  my  best  recollection  is 
that  they  carried  it  in  their  left  hand. 

Q.  Might  not  some  of  them  have  changed  their  tickets  from  the  left  hand  to  the 
right  hand  ? — A.  I  don't  think  they  could  have  done  that. 

Q.  Is  it  not  a  fact  that  when  colored  men  vote  the  Democratic  ticket  that  they 
keep  the  fact  a  secret  from  the  colored  Republicans  ? — A.  It  is  not  so  in  our  beat ;  we 
have  a  few  colored  men  who  used  to  vote  the  Democratic  ticket,  and  we  respected 
them  as  before  ;  but  there  is  none  now. 


I 


m'duffie  vs.  tukpin.  *  279 

Q.  Are  there  any  white  Repablicaus  in  your  beat? — A.  Not  one. 
Redirect  by  contestant : 

Q.  How  many  Dei<  ocratic  votes  in  that  beat  ? — ^^A.  Generally  from  14  to  12. 

(Contestee  objects  to  this  qnestion  and  answer  on  the  gronuda  that  it  calls  for  the 
mere  opinion  of  the  witness.) 

Q.  Did  you  have  all  of  the  tickets  in  your  possession  originally  ? — A.  I  did. 

Q.  You  say  in  answer  to  my  question  that  another  man  assisted  you  in  distributing 
the  tickets  ;  were  they  all  distributed  immediately  in  your  presence  and  under  your 
instructions  ? — A.  They  was. 

Q.  You  was  asked  by  Mr.  Holmes  about  Cap  Dudley,  one  of  the  inspectors  at  that 
election.  What  is  the  character  of  the  intellect  of  Cap  Dudley  ?  Ts  it  weak  or  strong 
intellect ;  is  his  intellect  above  or  below  the  average  of  his  race  ? — A.  I  should  say  it 
WJis  weak,  and  that  it  is  below  the  average. 

Q.  How  near  was  you  to  the  clerks  when  they  wrote  the  names  on  said  poll-list  ? 
Can  you  say  as  a  fact  that  said  clerks  wrote  said  names  on  said  list  f — A.  Sometime  I 
was  right  there  sitting  on  bench,  sometime  I  was  walking  about  the  place  between 
them  and  where  they  wore  voting  ;  it  was  my  honest  opinion  that  they  did  ;  nobody 
else  had  anything  to  do  with  it  but  them  two. 

(Contestee  objects  to  the  latter  part  of  this  answer  because  the  witness  gives  it  as 
his  opinion,  and  not  as  a  fact.) 

C.  F.  Hrubowski. 

H.  B.  Lever,  Democratic  inspector  at  this  poll,  testifies  to  the  fair- 
ness of  the  count.  No  one  was  present  to  cross-examine  him,  and  his 
testimony  shows  that  other  witnesses  were  necessary  to  sustain  the  re- 
turn, as  lie  did  not  handle  the  tickets. 

But  as  to  the  reliability  of  this  witness  we  quote  from  the  testimony 
of  Judge  McDuffie: 

Question.  Do  you  know  H.  B.  Lever,  of  Lowndes  County,  in  said  district  ?  If  yea, 
in  what  voting  precinct  in  said  county  does  he  reside  in,  and  resided  at  the  time  of 
said  election,  and  what  part,  if  any,  did  he  take  in  said  election?  What  political 
party  is  he  a  member  of  f  If  he  ever  sjiid  anything  to  yon  about  the  manner  in  which 
said  elc-ction  w^as  constructed  in  said  precinct;  state  all  that  he  said. — Answer.  I 
know  H.  B.  Lever;  he  resides  in  Church  Hill  precinct,  said  county,  and  resided  in 
said  precinct  on  the  day  of  the  election,  and  acted  as  inspector  in  said  precinct  on 
said  day.  He  is  a  member  of  the  Democratic  party  ;  I  had  a  conversation  with  him 
in  the  city  of  Selma,  while  the  examination  of  witnesses  in  thiscontest  was  going  on; 
wo  discussed  the  election  and  the  manner  of  the  count,  and  I  told  him  that  two  j'^ears 
ago  that  I  helped  his  faction  of  the  Democratic  party  in  said  county  with  the  under- 
standing that  the  Republicans  should  have  an  honest  count  in  ail  Federal  elections 
thereafter,  and  that  they  had  not  acted  squarely  with  me  in  counting  me  out  at  the 
last  election.  He  replied  that  he  did  not  knoio  that  the  arrangement  teas  to  continue  but 
for  one  near ;  that  if  he  had  known  it  he  tvoiild  nut  have  counted  me  out,  or  words  to 
that  effect ;  thai  Pat  Caffee,  meaning  Judge  A.  E.  Caffee,  jrrolate  judge  of  said  county, 
ought  to  have  let  them  known  about  it;  that  he  had  nothing  in  the  world  against  me  ;  but 
while  he  teas  keeping  a  negro  woman  and  had  six  children  by  her  he  would  rather  die  and 
go  to  hell  than  have  the  negroes  get  their  feet  on  our  necks  ;  that  he  was  an  Englishman  by 
birth  and  had  no  ties  in  this  country. 

If  the  return  is  true,  two-thirds  of  the  colored  voters  of  this  beat 
voted  for  contestee,  notwithstanding  the  positive  proof  that  every  one 
of  tliem  was  a  Republican,  and  ever^^  one  took  j^articular  pains  to  show 
it  at  the  polls,  and  to  prove  that  he  was  such.  The  declaration  of  each 
of  these  voters,  while  in  the  act  of  voting,  the  complete  registry  kept 
at  the  request  of  the  voters,  the  careful  plans  matured  beforehand  and 
carried  out  on  election  day  by  the  voters,  not  only  show  the  universal 
distrust  of  the  Democratic  inspectors,  but  conclusively  show  the  falsity 
of  the  return,  when  considered  in  connection  with  all  the  evidence. 

Haynesville. — Return  from  this  precinct:  Tnrpin,  158;  McDuffie,  0. 
Counted  by  the  committee,  Turpin,  54 ;  McDuffie,  272.  In  this  precinct 
there  were  two  boxes.  The  lawfully  appointed  Republican  inspector 
organized  aboard,  and  in  strict  comidiance  with  the  law  held  the  elec- 
tion, which  resulted  in  a  vote  for  McDuffie  of  272  votes.  The  unlaw- 
fully appointed  Democratic  inspectors  held  another  election,  at  another 


280  m'duffie  vs.  turpin. 

place,  and  made  retura  of  158  for  Turpiii  aud  noue  for  McDuffie.  It 
is  clearly  shown  by  the  evidence  that  less  than  60  votes  were  cast  at 
the  Democratic  poll,  and  the  best  evidence  is  that  not  over  eleven  col- 
ored men  voted  at  that  poll.  This  is  the  evidence  of  Tony  Smith,  the 
colored  inspector,  who  received  the  tickets  and  was  supposed  to  repre- 
sent the  Republicans,  but  who,  as  shown  by  the  returns,  voted  Demo- 
cratic. A  clerk  at  the  election  thought  there  might  have  been  as  many 
as  twenty. 

Neither  this  clerk  nor  the  colored  inspector  was  present  at  the  connt 
and  the  making  up  of  the  returns.  Tliere  are  between  300  and  400 
Eepublicaus  in  the  beat,  and  not  over  65  to  75  white  voters.  Here 
again  is  an  illustration  of  the  solidity  of  the  Eepublicau  vote  when  an 
honest  count  can  be  had,  and  a  further  illustration  of  the  way  Demo- 
cratic majorities  are  manufactured  by  taking  a  vote  of  between  50  and 
60  and  returning  it  as  158.  It  further  illustrates  the  reason  for  the  just 
distrust  of  the  Democrats  entertained  by  the  Republicans.  The  clerks 
at  this  election  were  both  called  as  witnesses,  but  neither  testified  to 
the  correctness  of  the  return,  nor  could  rhey,  because  it  was  a  clear 
case  of  returning  a  hundred  votes  that  were  never  cast. 

This  precinct,  taken  as  a  whole,  is  a  good  illustration  of  Democratic 
methods  in  the  Fourth  district  of  Alabama.  The  material  evidence 
can  be  found  on  pages  683,  688,  709,  711,  731,  739,  750. 

The  testimony  of  Yarner,  Democratic  inspector,  shows  the  unrelia- 
bility of  the  Democratic  returns.  The  poll-list  of  this  election  mys- 
teriously disappeared,  so  that  its  padded  list  cannot  be  given. 

St.  Glair. — Returned  and  counted,  Turpin  8,  McDuffie  0.  Counted 
by  the  committee,  Turpin  8,  McDuffie  214.  At  this  precinct  it  is  shown 
that  there  are  about  260  colored  Republicans  and  4  white  and  4 
colored  Democrats.  When  the  time  for  opening  the  polls  arrived  the 
Republican  inspector  asked  the  Democratic  inspectors  to  open  the 
polls,  and  was  informed  that  there  would  be  no  election  there  that  day 
and  none  at  Lowndesbor(»ugh.  Thereupon  this  inspector,  in  compliance 
with  the  law  aud  with  the  assistance  of  the  U.  S.  supervisor,  opened 
the  polls  and  held  an  election,  and  made  return  as  the  law  directs,  at 
which  election  the  Republican  ticket  received  21 1  votes.  A  return  is 
found  in  the  clerk's  office  showing  that  an  election  was  held  in  the 
beat  and  that  Turpin  received  8  votes ;  McDuffie  none.  That  is  all  the 
evidence  there  is  in  the  record  about  any  other  election  in  this  beat 
than  the  one  held  by  the  Republican  inspectors,  and  yet  the  county 
board  counted  the  Democratic  return  and  ignored  the  other.  The  Re- 
publican inspector's  return  is  fully  proved,  and  the  two  taken  together 
show  that  when  there  is  an  honest  count  the  Republicans  adhere 
strictly  to  their  party  ticket. 

Farmersville. — Returned,  Turpin,  26;  McDuffie,  0.  Counted  by  com- 
mittee, Turpin,  26;  McDuffie,  40.  Two  polls  were  held  in  this  precinct. 
At  one  McDuffie  received  40  votes  and  at  the  other  Turpin  received  26 
votes.  Both  elections  wore  duly  returned,  but  the  county  board  counted 
only  the  one  where  the  Democrats  voted.  The  poll  where  the  Repub- 
licans voted  was  duly  opened  by  a  lawfully  appointed  inspector,  a  board 
organized  according  to  law,  and  the  election  held  according  to  legal 
requirements.    There  is  a  dispute  as  to  which  poll  was  opened  first. 

The  result  of  the  two  elections,  held  side  by  side,  shows  the  true 
vote,  and  we  count  both  returns.  We  have  already  stated  the  situa- 
tion in  this  district  and  the  justification  and  necessity  for  these  pro- 
ceedings. 

Fort  Deposit. — In  this  precinct  the  regularly  appointed  inspectors 


m'duffie  vs.  turpin.  281 

refused  to  opeu  the  polls,  and  prevented  the  electors  present  from 
doing  so.  Late  in  the  afternoon,  after  the  Republicans  had  gone  home 
and  just  before  the  closing  hour,  the  Democratic  inspectors  opened  the 
polls  and  receiv^ed  the  Democratic  votes,  had  them  returned  and 
counted.  The  precinct  is  largely  Republican,  and  had  the  polls  been 
duly  opened  McDuffie  would  have  received  a  majority.  There  was  no 
opportunity  for  the  voters  to  deposit  their  ballots,  the  pretended  elec- 
tion was  but  a  pretense,  and  we  reject  the  return. 

WILCOX  COUNTY. 

Snow  ir*i^.— Returned,  Turpin  464,  McDuffie  103.  Counted  by  com- 
mittee, Turpin  82,  McDuffie  445.  The  testimony  in  regard  to  this  pre- 
cinct can  be  found  on  pages  123-130,  130-134,  138,  and  140,  forcoutest- 
ant,  and  forcontestee  on  pages  668,  014,  615.  There  are  500  colored 
voters  in  the  precinct,  only  4  of  whom  are  known  to  be  Democrats. 
There  were  at  the  election  75  white  Democrats  and  1  colored  Demo- 
crat. All  the  inspectors  were  Democrats.  The  Republicans  were 
fully  organized,  tickets  were  given  out  by  one  appointed  for  the 
purpose.  A  clerk  was  appointed  to  keep  a  poll-list  of  all  the  Republi- 
cans who  voted,  the  Republicans  refusing  to  vote  unless  this  precau- 
tion was  taken  to  preserve  the  evidence  of  how  they  voted. 

After  some  247  had  voted  and  had  their  names  recorded  the  deputy 
sheriff,  acting  under  telephone  orders  from  the  sheriff,  as  the  sheriff" 
himself  testifies,  undertook  to  forcibly  take  this  list  from  the  outside 
clerk  who  was  keeping  it.  In  doing  this  he  was  acting  without  legal 
right,  was  committing  an  outrage  upon  the  Republican  voters,  for  the 
sake  of  destroying  evidence.  The  Republican  clerk  tried  to  hold  on  to 
his  poll-list,  and  resisted  the  assault  made  upon  him.  In  the  melee  the 
deputy  sheriff  was  knocked  down,  as  he  says,  and  when  he  arose  com- 
menced firing  indiscriminately,  killing  a  Republican  by  the  name  of 
William  Banks.  One  of  the  parties,  M.  Davidson,  started  to  run  away 
with  the  poll-list,  and  was  pursued  by  other  Democrats,  who  kept  firing 
at  him  until  they  wounded  and  stopped  him.  Henry  Hawkins,  another 
colored  Republican,  was  also  wounded. 

After  this  the  Republicans  were  not  permitted  to  keep  a  list  of  names, 
but  so  determined  were  they  to  be  prepared  to  prove  their  exact  vote, 
that  they  continued  to  keep  tally,  and  the  poll-list  and  subsequent  tally 
are  in  the  record,  showing  445  colored  men  who  voted  the  Republican 
ticket  that  day.  The  evidence  is  clear,  intelligent,  and  conclusive  as 
to  this  number,  and  also  that  only  about  75  whites  voted  that  day.  If 
the  return  is  true,  it  follows  that  .341  of  these  colored  Republicans  voted 
the  Democratic  ticket,  together  with  120  white  men,  45  of  whom  were 
not  at  the  polls. 

The  return  requires  the  belief  that  out  of  this  body  of  nearly  500 
colored  Republicans,  who  were  actively  proclaiming  their  Republican- 
ism at  the  polls,  who  refused  to  vote  unless  an  outside  record  was  kept, 
who  as  one  man  were  protesting  against  the  surrender  of  this  poll-list, 
who  saw  one  of  their  number  murdered  and  two  others  wounded  in  the 
attempt  to  preserve  the  list,  three  out  of  every  four  voted  the  Demo- 
cratic ticket  in  some  secret  way  not  attempted  to  be  disclosed.  We 
count  the  vote  as  it  is  clearly  proven  in  the  record  by  competent  testi- 
mony, and  give  to  Turpin  the  votes  conceded  in  the  notice  of  contest. 

These  parties  were  not  content  with  killing  a  Republican  leader,  but 
must  go  further  and  attempt  to  blacken  the  character  of  the  witnesses 
to  the  crime.    The  testimony  of  the  deputy  sheriff  himself  shows  him 


282  m'duffie  vs.  turpin. 

to  have  committed  the  crime  of  murder  in  his  attempt  to  pave  the  way 
for  a  fraudulent  return ;  and  this  is  the  same  deputy  sheriff  who  was  so 
willing  to  guaranty  protection  to  contestant  when  he  was  ordered  out 
of  Wilcox  County  during  the  taking  of  testimony. 

Allenton. — The  returns  from  this  precinct  show  a  total  vote  of  309,  ot 
which  number  Tarpin  is  given  242,  and  McDuffie,  67.  J.  L.  Grace,  an 
intelligent  colored  man  and  a  member  of  the  Republican  executive 
committee,  testifies  on  page  142,  that  he  stood  during  the  day  fjom  35 
to  40  feet  in  front  of  the  polls  and  issued  the  Republican  tickets;  saw 
each  man  vote  the  ticket  handed  to  him.  The  voters  held  their  tickets 
so  that  they  could  be  seen  until  they  were  handed  to  the  iiisj)ector. 
Three  hundred  and  sixteen  men  voted  the  Republican  ticket,  and  only 
three  colored  men  voted  Democratic.  Not  over  40  or  45  white  voters  in 
the  precinct.  If  the  return  is  true,  over  200  of  the  colored  men  voted 
Democratic,  while  only  64  voted  Republican.  No  attempt  is  made  to 
contradict  the  testimony  for  contestant  or  to  sustain  the  return. 

.Bethel. — According  to  the  return  for  Bethel  there  were  400  votes 
cast,  of  which  385  were  for  contestee  and  only  15  for  contestant.  The 
proof  shows  that  McDuflBe  received  343  votes  instead  of  15.  A  com- 
plete list  of  these  votes  was  kept  by  two  persons  selected  for  that  pur- 
pose, standing  in  front  of  the  polls.  Each  voter  took  his  ticket.  Voted 
it,  and  had  his  name  registered  before  the  next  man  took  a  ticket.  The 
colored  men  here  were  active  and  earnest  Republicans.  The  inspectors 
were  Democrats,  except  an  ignorant  colored  man,  who  could  neither 
read  nor  write. 

B.  W.  Le^i  is  (page  262),  B.  J.  Dickson  (page  242),  and  Charles  Per- 
kins (pages  257-272),  all  of  them  intelligent  young  men,  who  had  had 
a  fair  education,  attended  to  the  Republican  tickets,  and  each  saw  and 
testified  to  the  whole  vote.  They  also  show  that  there  were  57  Demo- 
crats who  voted.  They  say  there  are  some  77  Democrats  in  the  pre- 
cinct, but  that  20  of  them  did  not  attend  the  election. 

Every  obstruction  was  placed  in  the  way  of  taking  this  testimony. 
In  Dickson's  examination-in-chief  there  are  70  lines  of  questions  and 
answers,  and  265  lines  of  objections  (Record,  page  242).  In  Perkins' 
examination-inchief  there  are  33  lines  of  questions  and  answers,  and 
144  lines  of  objections  (see  page  257).  No  attempt  is  made  to  contra- 
dict this  testimony  or  to  sustain  the  return. 

If  the  returns  were  true,  it  would  follow  that  328  colored  men  voted 
the  Democratic  ticket  and  only  15  the  Republican  ticket,  notwithstand- 
ing their  compact  organization  and  earnest  Republicanism.  But  the 
returns  are  not  true. 

White  Hall. — According  to  the  returns  there  were  142  votes  cast  at 
this  precinct,  116  of  which  were  given  to  Turpin.  The  proof  shows  that 
McDuffie  received  84  votes  instead  of  26. 

L.  E.  Fisher  (page  251)  and  D.  S.  Robins  (page  260),  two  educated 
colored  men,  issued  tickets  and  kept  a  complete  poll-list  of  the  Repub- 
lican voters,  which  poll-list  is  in  the  record.  They  issued  85  tickets, 
but  one  of  the  men  did  not  hold  his  ticket  so  that  they  were  certain  of 
his  vote,  and  they  erased  his  name,  thus  showing  the  care  taken  to 
secure  accuracy.  The  work  was  well  organized,  and  the  witnesses  tes- 
tify with  an  intelligence  and  candor  which  carries  conviction  of  truth- 
fulness. 

Charles  Garrison,  an  intelligent  man,  was  appointed  inspector  for  the 
Republicans  but  was  refused  admission  to  the  polls  and  the  election 
was  conducted  exclusively  by  Democrats. 

As  another  example  of  the  obstructive  method  resorted  to  by  con- 


I 


vs.  TUEPIN.  283- 

testee  to  prevent  the  takiug  of  testimony,  we  refer  to  Fisher's  testimony, 
on  page  251,  where  will  be  found  65  lines  of  questions  and  answers  and 
293  lines  of  objections. 

The  evidence  shows  that  there  is  but  one  colored  Democrat  in  this 
precinct,  and  yet,  according  to  the  returns,  58  colored  men  voted  the 
Democratic  ticket.  No  attemi)t  is  made  to  sustain  the  returns.  The 
inspectors  seem  to  have  been  willing  to  make  a  false  return,  but  not 
quite  willing  to  commit  perjury  to  sustain  it. 

.Clifton. — According  to  the  returns  215  votes  were  cast  at  this  pre- 
cinct, of  which  190  are  accredited  to  Turpin  and  on\y  25  to  McDuflBe. 
The  evidence  shows  that  204  votes  were  cast  for  McDuffie.  The  tally 
was  kept  by  Frank  Black  (page  263),  an  intelligent  colored  man.  His 
testimony  is  confirmed  by  James  Wicker  (page  264).  The  colored  in- 
spector, who  can  neither  read  nor  write,  testifies  that  he  took  the  tick- 
ets, handed  them  to  another  inspector,  and  he  to  the  third,  and  that  he 
'does  not  know  what  the  third  inspector  did  with  the  tickets.  The  in- 
spector who  deposited  the  tickets  in  the  box  is  not  called.  One  of  Oie 
inspectors  and  one  other  witness  are  called  to  sustain  the  fairness  of 
the  election,  but  both  of  these  witnesses  were  called  after  contestant 
had  been  driven  from  the  county,  and  without  notice.  To  sustain  the 
return  requires  the  belief  that  179  colored  men  voted  the  Democratic 
ticket  while  only  25  voted  Eepublican. 

Blade's  Bluff. — According  to  the  returns  251  votes  were  cast  at  this 
precinct,  213  being  credited  to  Turpin  and  38  to  McDuffie.  According 
to  the  evidence  McDuffie  received  205.  Henry  R.  Irvin  (page  205)  and 
W.  J.  Shelbern  (page  270)  kept  the  tally,  and  Coffee  Fisher  (page  265) 
issued  the  tickets.  The  evidence  is  clear  and  convincing.  Grreat  pains 
were  taken  to  secure  accuracj^,  and  there  was  little  chance  for  mistake. 
Cross-examination  brings  this  fact  out  fully.  The  inspectors  were  all 
Democrats — one  a  colored  Democrat,  well  known  for  many  years  as  such, 
but  he  was  illiterate,  and  could  not  tell  whether  the  return  was  correct 
or  not. 

In  the  absence  of  any  one  representing  contestant,  without  notice  to 
him,  and  after  he  had  been  compelled  to  leave  the  county,  this  colored 
inspector  and  one  other  were  called  to  sustain  the  returns.  Testimony 
taken  in  such  a  way  is  entitled  to  little  credit,  taken'in  connection  with 
the  other  circumstances  in  this  case,  and  a  perusal  of  it  will  show  that 
it  would  probably  not  have  been  taken  had  any  one  been  present  to 
cross-examine.  To  sustain  this  return  requires  the  belief  that  167  col- 
ored men,  known  as  Eepublicans,  voted  the  Democratic  ticket,  while 
only  38  were  faithful  to  their  party. 

Prairie  Bluff. — According  to  the  return  there  were  cast  at  Prairie 
Bluff"  259  votes,  of  which  number  Turpin  is  credited  with  245  and 
McDuffie  with  14.  Granville  Bennett  (page  274)  stood  in  view  of  the 
polls  and  kept  a  list.  Two  hundred  and  forty-one  Republicans  voted 
the  Republican  ticket  and  13  others,  being  the  whole  number  of  Dem- 
ocrats that  attended  the  election,  are  credited  as  voting  Democratic. 
The  list  is  in  the  record.  L.  J.  Sikes  distributed  the  tickets,  and  wit- 
ness saw  each  one  voted.  He  was  about  30  feet  from  the  polls.  Saw 
each  of  the  241  Republican  ballots  voted.  He  is  intelligent,  and  gives 
particulars,  showing  that  he  had  absolute  knowledge  of  the  Republican 
vote  cast.  He  also  says  that  he  knows  the  white  inspectors  of  the 
election  well,  and  that  thej'  are  not  regarded  as  truthful,  and  he  would 
not  believe  them  under  oath. 

J.  L.  Sikes  (page  278)  says  that  he  was  born  in  the  beat ;  that  241 
, votes  were  cast  for  McDuffie  and  13  for  Turpin.    McDuffie  was  pop- 


284  m'duffie  vs.  turpin. 

ular  aud  polled  the  full  vote  of  his  party.  The  inspectors  were  all 
Democrats. 

Pat  Pullom,  the  colored  inspector,  is  sixty  four  years  old,  cau  not  write ; 
testifies  himself  tliat  he  has  been  a  Democrat  since  1880.  He  received 
the  tickets  aud  put  them  in  the  box,  and  saw  them  taken  out  and 
counted.    Didn't  see  Sikes  or  Bennett  distributing  tickets. 

George  McCurdy  (page  487)  was  at  tlie  election  and  didn't  see  the 
witnesses,  Sikes  and  Bennett,  and  says  that  it  was  a  fair  election. . 

Joe  Robinson  (page  488),  one  of  the  inspectors,  testifies  to  the  same. 
These  witnesses  were  examined  in  the  absence  of  any  one  to  cross-ex- 
amine them — under  the  circumstances  heretofore  detailed.  The  evi- 
dence is  guarded  and  short  and  very  unsatisfactory,  besides  bearing 
marks  of  untruth. 

It  may  be  said  of  this  precinct,  as  of  others,  that  the  election  board 
was  illegally  constituted,  and  that  the  returns  are  simply  an  inversion 
of  party  strength.  The  liepublicans  took  no  especial  pains  to  insure 
accuracy  in  their  ligt  of  Democrats  voted,  and  it  is  probable  that  14 
Democratic  votes  were  cast  instead  of  13,  as  there  was  one  black  man 
who  voted  Democratic,  and  3  votes  were  added  for  good  measure. 

The  list  of  341  black  Republicans  who  attended  and  voted  is  in  the 
record.  Regarding  the  returns  as  true,  it  follows  that  327  colored 
Republicans  voted  Democratic  and  only  14  were  faithful  to  their  party, 
notwithstanding  their  expressed  desire  when  in  the  act  of  voting  to  vote 
the  partjr  ticket.  It  further  follows  that  in  a  manner  so  secret  that  it 
could  not  be  observed  they  changed  their  tickets  in  going  30  teet,  while 
holding  their  tickets  out  from  their  bodies  and  in  such  a  position  that 
their  chosen  chairman  could  see  them  and  give  evidence  of  the  fact. 
It  is  sufficient  to  say  that  the  committee  gives  full  credit  to  the  record 
kept  by  the  Republicans  to  protect  themselves  against  the  well-known 
methods  of  the  Democrats. 

Boiling  Springs. — Two  hundred  and  forty-two  votes  are  returned 
from  this  precinct,  200  for  Turpin  and  42  for  McDuffie.  James  Wad- 
kins  testifies  that  as  well  as  he  can  remember  239  votes  were  cast.  212 
for  McDuffie  aud  27  for  Turpin. 

0.  B.  Taylor  (page  270)  says  McDuffie  is  popular,  and  that  there  are 
two  or  three  colored  Democrats  in  the  beat. 

S.  J.  Dixon  (page  280)  testifies  that  242  votes  were  cast,  214  for 
McDuffie  and  28  for  Turpin.  His  list  is  in  evidence  (page  280),  con- 
taining the  names  of  both  Republicans  and  Democrats  in  separate  lists, 
showing  the  extreme  care  of  the  Republican  managers  to  keep  an  ac- 
curate record  of  the  election. 

Dixon  distributed  the  tickets,  and  D.  L.  Moore,  J.  J.  Carter,  and  J. 
W.  Lovett  kept  tne  poll-list.  The  colored  inspector  at  this  poll  could 
neither  read  nor  write,  and  is  credited  in  the  list  as  having  voted  Dem- 
ocratic. Dixon  is  an  intelligent  man  and  stood  a  severe  cross-exami- 
nation. He  could  not  see  the  inspectors  because  they  were  inside  the 
house.  Tickets  were  handed  through  the  window  and  he  could  uot'see 
the  hands  of  the  inspector.  He  saw  the  214  Republican  tickets  handed 
into  the  window,  but  did  not  see  the  hand  of  the  inspector  who  received 
them.  If  it  was  necessary  to  see  the  hand  of  the  inspector  to  know  how 
a  man  voted  he  could  not  tell  how  they  voted. 

On  this  slender  thread  the  contestee  hangs  his  case  to  sustain  this 
poll  without  further  evidence  of  its  correctness.  This  is  a  fair  illus- 
tration of  the  principle  underlying  the  cross-examinations,  and  of  cou.- 
testee's  idea  of  destroying  the  reliability  of  a  witness's  knowledge. 
There  were  six  more  tickets  given  to  colored  men,  but  as  they  were  not 
seen  to  vote  them,  their  names  are  left  off  the  list. 


m'duffie  vs.  turpin.  285 

Here,  theu,  are  214  colored  men  who  took  Eepublicau  tickets,  passed 
them  to  the  inspectors,  and  then  had  their  names  registered;  but 
the  inspectors  returned  but  42  of  them  as  having  been  counted.  Here 
are  27  white  men  at  the  polls  and  one  colored  man  (the  inspector), 
known  as  a  Democrat,  and  yet  out  of  this  list  the  inspectors  work  out 
200  Turpin  tickets,  but  they  do  not  venture  to  testify  to  the  correctness 
of  the  count.  That  is  to  say,  178  of  these  colored  Eepublicans  voted 
against  their  party,  against  their  declaration  while  in  the  act  of  vot- 
ing, and  against  their  assertion  then  and  there  when  they  required 
their  names  to  be  registered  as  having  voted  the  Republican  ticket. 

The  notice  of  contest  does  not  permit  of  giving  to  contestant  the  full 
vote  cast  for  him,  as  only  200  are  there  claimed,  and  42  are  conceded 
to  Turpin.  This  was  the  result  of  mistaken  information  and  results  in 
depriving  a  number  of  voters  of  their  votes,  but  the  committee  are  dis- 
posed in  this  case  to  count  the  vote  as  charged  in  the  notice. 

Canton. — Two  hundred  and  thirty-four  votes  were  returned  from  Can- 
ton, of  which  223  were  credited  to  Turpin  and  11  to  McDuffie. 

James  A.  Dargans  (page  290),  a  school  teacher,  but  not  an  active  poli- 
tician, kept  the  tally  of  the  Republican  votes  cast  at  this  box.  Wm. 
Rhea  distributed  the  tickets ;  188  were  voted  and  tallied.  Every  ticket 
given  out  by  Rhea  was  shown  to  Dargans,  then  immediately  taken  to 
the  inspector,  and  then  tallied.  One  voter  went  to  the  polls  and 
handed  in  his  ticket,  and  when  he  was  tallied  the  next  voter  went  for- 
ward, and  ST  on  till  all  had  voted.  Tickets  were  handed  in  through 
the  window,  inspectors  in  sight,  but  not  the  box. 

Witness  watched  the  voter  and  the  ticket  in  his  hand  until  it  was 
hauded  in  to  the  inspector.  The  crowd  was  kept  back,  so  that  no  one 
was  between  the  witness  and  the  window,  and  no  one  near  the  voter. 
The  hand  that  held  the  ticket  was  in  constant  view  until  the  ticket  was 
voted.  The  witness  was  severely  cross-examined,  and  contestee  satis- 
fies himself  that  he  has  discredited  the  witness  and  shown  that  he  did 
not  know  how  the  voter  really  voted  because  the  witness  says  that  he 
couUl  not  see  the  ticket  after  the  hand  was  put  into  the  window,  but 
did  see  it  until  it  was  handed  to  the  inspector. 

Out  of  188  colored  Republicans  voting  at  this  precinct,  and  each  tak- 
ing special  pains  to  show  that  he  voted  the  Republican  ticket,  the  in- 
spectors generously  counted  11  for  the  Republican  candidate,  and  with 
only  a  handful  of  white  voters  present,  manage  to  give  contestee  223. 
The  inspectors  and  clerks  were  Democrats.  None  of  them  are  called 
to  explain  or  sustain  this  wonderful  feat  of  turning  Republican  votes 
into  Democratic  ones  when  making  up  the  returns. 

Oeesbend. — The  returns  of  Oeesbend  show  205  votes  cast,  of  which 
Turpin  is  credited  with  190  and  McDufiQe  with  15. 

Isham  McLaughlin  (page  293)  testifies  that  he  has  lived  in  the  beat 
ever  since  the  war;  that  he  distributed  and  saw  voted  192  Republican 
tickets  with  McDufQe's  name  on  them,  and  that  Sam  Petway  kept  the 
poll-list.  He-  further  says  that  there  are  but  7  white  voters  in  the 
beat,  all  of  whom  voted  that  day.  The  colored  inspector  could  not 
read  or  write. 

Petway  testifies  that  McLaughlin  gave  out  the  tickets ;  that  each 
ticket  was  brought  to  him  and  then  voted,  and  as  soon  as  he  had  voted 
the  voter  would  return  to  him  and  have  his  name  registered  as  voting 
the  Republican  ticket.  Out  of  these  192  colored  Republicans  the  in- 
spectors generously  return  15  as  voting  Republican,  and  with  only  7 
white  men,  take  190  for  themselves.  No  attempt  is  made  to  sustain  the 
return. 


286  m'duffie  vs.  turpin. 


PEERY  COUNTY. 

Hamburg. — According  to  the  returns  there  were  cast  at  Hamburg 
295  votes,  of  which  Turpin  is  credited  with  212  and  McDuffie  with  83. 

J.  C.  Hames  (page  145)  tefetifles  that  Thomas  Huey  issued  the  Repub- 
lican tickets,  and  he  read  them  and  kept  the  tally  as  fast  as  they 
were  voted  ;  saw  256  vote  the  Eepubiicau  ticket  straight.  One  colored 
man  and  44  whites  voted  the  Democratic  ticket.  With  one  exception 
the  colored  men  were  liepublicaus  and  warm  supporters  of  McDuffie. 
The  tally  was  kept  at  the  request  of  the  voters  to  guard  against  fraud, 
and  when  the  result  of  the  count  was  announced  there  was  great  dis- 
satisfaction among  them. 

An  attempt  is  made  to  sustain  this  return  by  one  of  the  clerks  of  the 
election  who  says  the  ballots  were  correctly  counted  "  as  found  in  the  box," 
and  by  a  United  States  supervisor  who  says  he  was  in  and  out  of  the 
room  while  the  voting  was  going  on.  This  supervisor  says  there  are 
some  50  white  men  and  300  colored  men  in  the  beat,  and  that  he  knows 
of  some  colored  men  who  vote  the  Democratic  ticket,  but  he  refuses  to 
give  any  names.  He  was  impudent  in  his  answers,  and  his  evidence 
shows  that  he  gave  opportunity  to  tamper  with  the  box  if  the  inspect- 
ors were  so  disposed.  The  language  of  the  clerk,  "As  found  in  the  box," 
shows  careful  choice  of  language,  but  even  this  clerk  acknowledges  that 
he  did  not  read  the  tickets ;  he  only  kept  tally  as  the  tickets  were  read. 

If  the  returns  are  true  173  colored  men  voted  Democratic  and  only 
83  voted  Kepublican,  although  all  of  the  250,  in  the  very  act  of  voting, 
announced  themselves  as  Eepublicans  and  had  their  names  taken  down 
as  such.  The  witness  for  contestee,  who  claims  to  be  well  informed,  a 
colored  man  himself,  could  not  or  would  not  name  a  single  one  of  all 
this  number  who  was  a  Democrat.  The  evidence  satifies  the  committee 
that  the  return  was  not  correct  and  did  not  represent  the  true  state  of 
the  vote  cast.  We  count  the  vote  as  the  evidence  shows  it  to  have 
been  cast. 

Marion. — According  to  the  returns  783  votes  were  cast  at  Marion, 
of  which  697  are  credited  to  Turpin,  though  there  are  about  700  col- 
ored voters  and  comparatively  few  white  voters  in  the  precinct. 

According  to  the  testimony  of  J.  T.  Wilson  (page  232),  confirmed  by 
that  of  Mat  Boyd,  there  were  at  least  583  votes  cast  for  McDuffie. 
Witness  saw  all  these  voters  go  to  the  polls  with  Republican  tickets 
and  hand  them  to  the  inspectors.  Just  before  reaching  the  window 
where  the  votes  were  delivered  the  voters  had  to  pass  behind  a  coal- 
shed,  which  did  not  cover  the  voter,  but  left  his  hand  out  of  view. 
With  this  exception  the  voter  had  no  chance  to  change  tickets  without 
being  seen,  ^o  one  was  near  enough  to  the  voter  to  give  him  a  ticket 
from  the  time  he  started  until  he  voted,  and  none  but  straight  Repub- 
lican tickets  were  given  to  the  voters  or  circulated  among  them. 

There  was  a  Republican  supervisor  at  this  poll,  and  when  the  polls 
wee  closed  ihe  Democratic  inspectors  refused  to  go  on  and  count  the 
ballots,  but  waited  until  dark,  and  then  were  told  by  the  clerk  of  the 
court  that  he  wanted  that  room — but  we  will  let  the  witness  tell  the 
story,  as  an  abstract  would  not  do  full  justice  to  the  evidence. 

Nicholas  Stephens  sworn : 

Q.  What  is  yonr  name,  age,  and  where  did  you  live  on  the  6th  of  November  last, 
and  how  long  had  you  lived  there  f  ■  -A.  Nickolas  Stephens  is  my  name  ;  am  about  43 
years  old  ;  I  lived  in  Marion  beat,  Perry  County ;  have  lived  there  about  2.5  years. 

Q.  If  there  was  an  electicn  h>-ld  there  that  day,  state  for  what  purpose  it  was  held. 


m'duffie  vs.  turpin.  287 

■who  were  the  Republicau  aud  Democratic  candidates  atsaid  election,  and  what  connec- 
tion did  you  have  with  the  election. 

(Contestee  objects  because  the  matters  inquired  about  are  matters  of  record,  and  the 
record  itself  is  the  best  evidence,  and  a  predicate  has  not  been  laid  to  show  these  facts 
by  first  showing  the  loss  or  destruction  of  the  record.) 

A.  There  was  an  election  held  for  President  and  Vice-President,  and  Congressman 
from  the  4th  Congressional  district.  Judge  McDnffie  was  the  Republican  candidate 
and  Mr.  Turpin  was  the  Democratic  candidate  for  Congress.  I  was  U.  States  super- 
visor. 

Q.  Who  were  the  inspectors  and  clerks  of  said  election  ?  And  state  their  politics, 
if  you  know. 

(Contestee  objects  to  the  first  part  of  the  question  because  as  to  who  the  inspectors 
were  is  a  matter  of  record,  the  record  itself  being  the  best  evidence.) 

A.  Mr.  J.  A.  Lightsy,  Jim  Lockhart,  and  Joe  Myatt  were  the  inspectors;  Mr.  Stratou 
and  Mr.  Woodfin  were  the  clerks ;  they  were  all  Democrats,  except  Joe  Myatt. 

Q.  Were  they  all  warm,  ardent  supporters  of  L.  W.  Turpin  except  Myatt? 

(Contestee  objects  because  it  is  leading  and  because  immaterial  and  irrelevant.) 

A.  Yes,  sir. 

Q.  At  what  hour  did  the  polls  close  there  that  day  ? — A.  At  5  o'clock. 

Q.  Did  you  witness  a  count  of  the  ballots  cast  there  that  day?  If  so,  state  fully 
everything  that  occurred. — A.  I  witnessed  the  count.  After  the  election  closed,  about 
a  half  hour  a  light  was  called  for  repeatedly,  about  three  times  ;  a  little  while  after 
that  the  lamps  were  brought  in  out  of  the  clerk's  office,  after  which  the  clerk  of  pro- 
bate came  in  and  asked  us  to  get  out  and  go  into  the  next  office,  that  he  bad  some 
valuable  books  that  had  to  stay  in  there  that  night ;  pretty  soon  after  this  Capt.  i'. 
H.  Sewell  caiue  to  me  with  his  commission  as  U.  S.  supervisor  on  the  Democratic 
side,  and  wanted  to  read  his  commission  to  me ;  about  that  time  the  inspector  had 
got  ready  to  remove  into  the  next  room.  Capt.  Sewell  was  between  me  and  Mr.  J. 
C.  Lightsy,  who  had  the  box  ;  I  told  th?  captain  that  my  commission  read  the  same 
as  his,  aiKl  the  inspector  had  taken  the  box  and  gone  into  the  next  room,  and  to 
please  let  me  by,  that  I  wanted  to  get  in  there;  he  said  to  me  will  they  let  us  in 
there ;  I  said,  yes,  I  have  been  here  all  day;  and  when  I  got  in  the  box  was  sitting 
on  the  table;  it  was  sometime  after  we  got  in  there  before  they  commenced  to  count; 
the  reason  of  this  was  that  they  were  bothered  about  getting  a  box  to  count  the 
votes 'out  in.  When  they  had  counted  to  about  25  votes,  Joe  Myatt  asked  me  what 
had  become  of  the  Republican  votes;  I  told  him  I  didn't  know.  Judge  McDnffie 
had  to  come  and  see  after  the  votes  ;  the  majority  of  the  tickets  that  were  counted 
were  Democratic  tickets  and  "imitation"  tickets,  which  imitation  tickets  hid 
on  the  Republican  electors  with  L.  W.  Turpin  as  candidate  for  Congress.  The 
whole  vote  was  783,  and  in  the  count  there  was  805 ;  I  asked  the  inspector  how 
could  they  count  more  votes  than  was  polled  ;  at  that  time  Mr.  Dick  Lightsy  came 
in  and  stated  that  the  clerks,  or  Joe  Myatt,  had  made  a  mistake  in  counting  the'votes 
they  runup  the  count  again;  Mr.  Straton'scountstoodthesame;  Mr.  Dick  Lightsy  then 
took  his  pencil  and  paper  and  showed  to  them  their  mistake  ;  then  Mr.  Dick  Lightsy 
wrote  another  poll-list  and  after  he  got  through  they  then  called  in  on  the  inspectors  to 
sign,  and  Mr.  Jack  Lightsy  signed  and  Jim  Lockhart  signed,  and  Joe  Myatt  refused 
to  sign,  and  they  told  him  that  if  he  didn't  sign  they  would  arrest  and  put  him  in 
jail,  after  which  I  asked  the  inspectors  privilege  to  ask  Joe  Myatt  a  question,  and 
they  gave  me  leave.  I  asked  Joe  did  he  conscientiously  believe  that  the  box  that 
the  votes  were  counting  out  of  was  the  box  in  which' they  were  deposited,  and  he 
stated  to  me  that  the  ballots  wasn't  changed  when  counted,  but  he  couldn't  believe 
that  Judge  McDuffie  got  as  few  votes  as  he  did  there ;  then  I  said  to  him  that  if  he 
had  reason  to  believe  that  the  box  counted  out  was  not  the  box  that  the  votes  were 
deposted  in,  he  had  no  right  to  sign  the  return.  Then  Mr.  Dick  Lightsy  walked  up 
to  me,  shook  his  fingers  in  my  face,  and  called  me  a  damned  fool,  and  said  that  I  had 
always  acted  as  such,  after  which  I  was  called  in  to  sign  those  official  returns,  and  I 
refused  to  do  so. 

(Contestee  objects  to  this  answer  because  the  facts  testified  to  are  immaterial  and 
irrelevant,  and  because  it  isheresay ;  and  the  conclusions  of  the  witness  based  not 
upon  facts  within  his  knowledge,  but  upon  the  vague  suspicions  of  Joe  Myatt.) 

Q.  Was  this  Dick  Lightsy,  of  whom  you  have  been  speaking,  a  member  of  the 
Democratic  or  Republican  party  ? — A.  A  member  of  the  Democratic  party. 

Q.  Was  he  one  of  the  officers  whose  duty  it  was  to  hold  the  election  in  that  beat  on 
that  day  ? — A.  He  was  not. 

Q.  Did  he  have  any  connection  with  the  election  which  gave  him  the  right  to  be  in 
the  room  or  participate  in  the  count  of  the  vote  which  was  cast  that  took  place  in 
that  room  on  that  day? — A.  He  had  no  right  in  there  at  all,  but  he  ran  the  whole 
business. 

Q.  Was  not  the  said  Dick  Lightsy  a  warm  and  ardent  supporter  of  L.  W.  Turpin  in 
candidacy  for  Congress  at  that  election  ? 

(Contestee  objects  because  leading  aud  because  immaterial.) 


288  m'duffie  vs.  turpin. 

A.  He  was. 

Q.  You  have  stated  in  your  answer  to  a  former  question  that  the  said  Dick  Lightsy 
wrote  out  a  poll-list;  do  you  mean  to  be  understood  as  saying  that  he  made  out  a 
different  poll-list  from  the  one  kept  during  the  day  by  the  clerks,  and  that  he  changed 

(Contestee  objects  because  leading,  in  that  it  suggests  the  answer  sought,  and  be- 
cause if  such  a  poll-list  exists  it  is  itself  the  best  evidence  as  to  its  contents,  and  no 
predicate  has  been  laid  by  showing  its  loss  or  its  destruction  for  the  introdpction  of 
secondary  evidence.) 

A.  He  wrote  a  return  and  not  a  poll-list ;  he  copied  one  from  the  printed  form. 

Q.  Did  the  inspector's  returns  as  written  out  by  the  said  Dick  Lightly  show  the 
nuruber  of  805  voties  that  were  found  in  the  box,  and  of  which  the  inspectors  were 
counting? 

(Contestee  objects  because  leading.) 

A.  No,  sir. 

Q.  Then  the  said  returns  or  the  box  from  which  the  count  was  made  was  fraudu- 
lent, wasn't  it? 

(Contestee  objects  because  leading,  and  because  the  question  requires  as  an  answer 
a  conclusion  of  law,  and  the  answer  when  given  would  be  but  an  opinion  of  the  wit- 
ness upon  a  legal  conclusion.) 

A.  I  refused  to  sign  it  on  the  grounds  that  I  believed  it  was  fraudulent. 

Q.  Did  you  see  the  box  in  which  the  ballots  were  placed  during  the  entire  time  the 
voting  was  going  on  ? — A.  Yes,  eir. 

Q.  Did  you  ever  see  the  box  in  which  the  ballots  had  been  placed  after  C.  H.  Sewel 
got  between  you  and  the  room  in  which  the  said  ballot  box  had  been  carried  ? — A.  Not 
until  I  got  in  the  room. 

Q.  Was  the  boxthatyonthensawthere  the  identical  box  in  which  you  had  seen  the 
ballots  deposited  during  the  day  ? — A.  I  couldn't  swear  it  was  the  box. 

Q.  Why  is  it  that  you  couldn't  swear  that  it  was  the  box,  and  did  you  notice  any 
difference  in  the  box  ? — A.  Because  the  box  we  used  all  day  was  a  new  box,  and  the 
one  I  found  in  theie  was  a  new  one,  and  I  couldn't  discover  any  difference  in  the  box. 

Q.  Did  you  notice  the  way  the  tickets  were  folded  when  they  were  put  into  the  box 
during  the  day  ? — A.  Yes,  sir. 

Q.  Was  the  tickets  that  you  saw  counted  out  of  tho  box  folded  into  the  same  manner 
as  those  you  saw  put  into  the  box  ? — A.  No,  sir. 

Q.  How  long  was  the  ballot-box  out  of  your  sight  after  the  close  of  the  polls  and 
before  the  count  commenced  ?— A.  About  a  minute. 

Q.  Could  not  a  box  that  had  been  prepared  for  the  purpose  be  substituted  in  place 
of  the  true  box  during  the  time  it  was  out  of  5'^our  sight? 

(  Contestee  objects  because  it  is  leading,  and  because  the  notice  of  contest  alleges 
a  false  and  fraudulent  count  of  the  vote  cast  and  does  not  charge  that  it  was  done 
by  a  substitution  of  one  box  for  another;  wherefore  contestee  says  the  evidence  here 
sought  is  not  pertinent  to  the  issue.) 

A.  Yes,  sir. 

Q.  Could  you  see  the  ballots  that  were  deposited  with  the  ofiQcer  whose  duty  it  was 
to  receive  them  on  that  day  at  that  election  ? — A.  I  could. 

Q.  Give,  as  near  as  you  can,  the  whole  number  of  Republican  who  voted  at  that 
box  on  that  day.— A.  I  think  about  597. 

Q.  Give,  as  near  as  you  can,  the  whole  number  of  Democrats  who  voted  at  that  box 
on  that  day. — A.  About  175  or  180. 

Q.  Are  you  not  well  acquainted  with  the  Republican  voters  who  cast  their  ballots 
at  that  election  on  that  day  ?— A.  I  am. 

Q.  Was  there  a  single  one  of  them  who  was  supporting  L.  W.  Turpin  for  Congress 
at  that  election  ? — A.  I  know  of  one. 

Q.  Was  there  any  other  than  the  one  you  speak  of? — A.  No,  sir. 

Q.  Then  were  not  the  597  Republicans  who  voted  at  that  box  on  that  day  support- 
ers of  J.  v.  McDuffie  in  his  candidacy  for  Congress  at  that  election  ? — A.  Yes,  sir. 

Q.  Give,  as  near  as  you  can,  the  whole  number  of  votes  received  by  J.  V.  McDuffie 
for  Congress  at  that  election  on  that  day. 

(Contestee  objects  because  the  poll-lists  and  official  returns  are  the  best  evidence 
of  the  number  of  votes  oast  and  for  whom  cast,  and  because  the  said  question  tends 
to  invade  the  secrecy  of  the  ballot-box,  and  because  it  is  to  a  fact  that  could  be  but 
a  matter  of  opinion  and  not  without  the  knowledge  of  the  witness.) 

A.  About  597. 

Q.  Did  you  make  out  a  supervisor  return  of  said  box ;  and,  if  so,  when  did  you  make 
it  out? 

(Contestee  objects  because  it  has  not  been  shown  by  competent  evidence  that  the 
witness  was  authorized  by  law  to  make  out  such  return.) 

A.  I  made  out  such  a  return  on  the  morning  of  the  7th. 

Q.  Did  you  give  in  said  report  anything  other  than  a  report  of  the  count  made  by 
the  inspectors  of  the  elections  ? — A.  I  did  not. 


m'duffie  vs.  turpin.  289 

Q.  Did  yon  fill  ont  the  blank  in  said  report  for  tlie  supervisors'  count  ?  -A.  I  did. 

Q.  Look  at  the  paper  that  is  now  shown  you  and  see  whether  or  not  you  are  inis- 
talien  when  you  say  you  filled  out  the  blank  for  the  supervisors'  report  ? — A.  Yes,  sir ; 
I  see  my  mistake. 

Q,  Then  you  did  not  make  any  count  or  return  any  as  supervisors'  count,  did  you  T — 
A.  No,  sir ;'  I  did  not. 

Q.  Was  not  the  reason  that  you  failed  to  make  a  supervisors'  count  because  you  be- 
lieved that  a  false  box  had  been  substituted  for  the  true  box  in  which  the  ballots  had 
been  placed  ? 

('Contestee  objects  because  it  is  a  leading  question.) 

A.  Yes,  sir. 

Q.  State  whether  or  not  you  did  not  further  believe  that  the  ballots  that  were  counted 
were  other  and  different  ones  from  those  that  had  been  voted  by  the  voter. 

(Contestee  objects  because  it  is  leading  and  because  founded  upon  an  assumption 
that  there  are  no  facts  to  support. ) 

A.  Yes,  sir ;  I  did. 

Q.  State  whether  or  not  you  had  seen  any  of  these  imitation  tickets  which  you  say 
were  counted  out  of  the  box  distributed  or  circulated  amongst  the  Republican  voters 
at  that  boat  on  that  day  ? — A.  I  did  not. 

O.  Was  not  the  first  knowledge  that  the  Republicans  of  that  beat  had  of  the  ex- 
istence of  those  imitation  tickets  the  time  when  they  were  counted  ont  of  the  ballot- 
box  ? — A.  Yes,  sir. 

From  this  evidence  the  fraud  is  made  to  appear  clearly.  The  super- 
visor, who  had  faithfully  discharged  his  duty,  had,  up  to  the  closing  of 
the  polls,  effectively  prevented  fraud.  To  change  this  large  Eepublican 
beat  into  a  Democratic  one  required  further  work.  Hence  the  delay 
in  commencing  the  count,  the  demand  for  a  change  of  rooms,  the  ap- 
pearance of  the  Democratic  supervisor  in  the  nick  of  time,  the  removal 
ol  the  box  from  the  sight  of  the  watchful  Eepublican  supervisor  by  the 
ruse  of  stopping  him  to  see  whether  his  associate's  commission  read  as 
his  did,  the  change  of  boxes,  and  the  substitution  of  one  already  fixed 
for  counting.  The  bollot-box  stufter,  however,  had  miscalculated  the 
number  of  votes  which  would  be  deposited  after  he  had  prepared  his 
box  on  the  basis  of  those  already  cast  and  his  estimate  of  the  rest,  for 
he  got  into  his  fraudulent  box  22  more  than  the  number  actually  voted. 
Here,  too,  appears  a  large  number  of  tickets  having  the  names  of  the 
Eepublican  electors  on  them,  and  the  name  of  Turpin  for  Eepresentative. 
No  such  tickets  were  voted  or  circulated  among  the  voters. 

It  may  be  remarked  here  that  this  kind  of  a  ticket  was  found  in  boxes 
in  various  parts  of  the  district,  and  it  is  sought  to  be  shown  that  this 
ticket  was  voted  by  Eepublicaus.  In  many  places  in  the  record  this 
suggestion  is  made  by  way  of  showing  that  Eepublicans  may  have  been 
^mistaken  in  supposing  that  they  voted  for  McDuffie,  that  they  ignor- 
fcntly  voted  this  ticket.  It  does  not  seem  to  have  suggested  itself  to 
the  attorneys  taking  the  testimony  for  contestee  that  pfoof  of  such 
leception  would  only  be  additional  evidence  of  fraudulent  prac/tices. 
The  care  taken  against  such  fraud  prevented  its  success,  except  so  far 
IS  ballot-boxes  were  stuffed. 

In  this  beat  a  man  by  the  name  of  J.  C.  Lightsey  was  substituted  for 
the  regularly  appointed  inspector.  Lightsey  removed  the  box  before 
the  counting  commenced ;  Lightsey  and  his  brother,  who  had  no  busi- 
less  with  the  counting,  fixed  the  returns  and  poll-lists  to  suit  them- 
selves, and  to  Lightsey  were  committed  the  ballots  when  the  count  was 
)mpleted.  The  fraud  was  so  apparent  that  the  colored  inspector 
^refused  to  sign  the  returns  when  the  count  was  completed,  and  Lightsej' 
' undertook  the  work  of  compelling  him  to  do  so,  threatening  him  if  he 
refused.  • 

One  of  the  Democratic  inspectors  is  called  as  a  witness,  and  only 
shows  that  he  does  not  know  whether  the  box  was  changed  or  not ;  but 
Lightsey  does  not  appear  as  a  witness.  The  cross  examination  of  this 
fl.  Mis.  137 19 


290  m'duffie  vs.  turpin. 

inspector  shows  both  his  want  of  knowledge  and  his  want  of  candor. 
Keither  of  the  clerks  testified. 

Of  the  583  colored  Republicans  who  voted  at  Marion  that  day,  86 
only  are  credited  to  their  candidate.  The  fraud  is  apparent,  and  we 
correct  the  return  according  to  the  best  obtainable  evidence.  * 

Rehoheth  precinct. — The  cotfiiinittee  does  not  change  the  return,  al- 
though the  evidence  raises  serious  doubts  as  to  its  correctness. 

Scott  and  Polecat  precincts  are  also  left  as  returned. 

JJniontown. — There  were  two  boxes  in  this  beat,  and  returns 
were  made  by  the  oificials  holding  each  election.  At  one  the 
Eepublicans  voted,  at  the  other  the  Democrats.  The  return  which 
was  counted  gave  Turpin  210,  McDuflfie,  2.  The  other  return  gave  Mc- 
Duffie  953.  Dr.  J.  H.  Houston's  testimony  (300)  gives  the  history  of 
the  election  where  the  Republicans  voted,  and  shows  that  all  the  forms 
of  law  were  complied  with.  The  sheriff  of  the  county  (446)  shows  that 
the  returns  were  presented  to  him  and  he  refused  to  receive  them.  The 
box  was  retained  and  its  contents  counted  in  the  presence  of  the  com- 
missioner taking  the  testimony. 

There  is  a  dispute  about  the  time  of  opening  the  different  polls,  but 
in  our  view  the  question  is  not  material  in  this  particular  case.  That 
the  two  polls  taken  together  constitute  an  honest  statement  of  the 
result  of  the  election,  and  show  the  exact  state  of  the  legal  vot«,  we 
have  no  doubt.  They  also  show  that  where  there  is  an  honest  count 
the  Republicans  adhere  to  their  party  ticket. 

The  action  of  the  election  inspectors  for  this  precinct  at  the  election 
.for  the  Fiftieth  Congress  justified  the  action  of  the  Republicans.  In- 
deed, it  was  apparently  the  only  course  left  open  to  them  to  prevent 
their  votes  from  being  counted  for  the  Democratic  candidate.  At  that 
election  the  returned  vote  was: 

Davidson  (Democrat) 720 

Turner  (Independent) ...203 

McDuffie 65 

The  majority  of  the  committee  in  that  case  found  from  the  Evidence 
such  frauds  as  destroyed  the  return,  and  from  the  evidence  gave  Mc- 
Duflfie 400  and  Davidson  8.  The  evidence  indicated  a  Republican  vote 
of  over  800,  but  the  majority  of  the  committee  found  that  only  400  were 
satisfactorily  proved. 

In  extraordinary  cases,  and  where  it  appears  that  in  no  other  way 
can  the  actual  will  of  the  voter  be  ascertained,  a  resort  to  methods  not 
technically  in  accordance  with  statutory  direction  may  be  justifiable, 
and  upon  proof  that  a  full,  fair,  and  honest  election  has  been  held  by 
those  only  who  are  qualified  voters,  under  these  circumstances  the  re- 
turns from  such  an  election,  when  duly  proved,  may  be  considered  and 
counted. 

None  of  those  guards  provided  by  statute  to  secure  lionest  results 
should  be  neglected,  but  when  statutory  provisions  designed  to  protect 
qualified  voters  in  the  exercise  of  their  legal  rights  are  made  use  of  with 
deliberate  purpose  to  suppress  the  will  of  the  majority,  such  action  will 
be  regarded  as  fraudulent. 

Cunningham  and  Walthall. — These  returns  are  not  changed  by  the 
committee.  While  the  evidence  cast  some  doubt  upon  their  correctness, 
it  is  not  deemed  sufficient  to  justify  their  rejection. 

Ferryvilk. — Return  is  rejected  because  neither  return  nor  poll-list  is 
signed.  If  notice  of  contest  is  to  be  taken  as  conclusive  upon  contest- 
ant, this  return  should  not  be  rejected,  but  60  votes  should  be  counted 


m'duffie  vs.  tukpin.  291 

for  contestant  and  123  for  contestee.     In  that  case  contestant's  majority 
as  found  by  the  committee  would  be  diminished  by  63  votes. 

HALE  COUNTY. 

Of  the  nine  precincts  in  Hale  County  attacked  by  the  evidence,  the 
committee  find  that  in  only  three  is  the  evidence  sufficiently  conclusive 
to  require  a  rejection  of  the  returns  and  an  ascertainment  of  the  true 
vote  by  other  evidence. 

Green^horough. — According  to  the  returns  there  were  897  votes  polled 
at  this  beat,  577  of  which  are  credited  to  Turpin  and  320  to  McDuffle. 
Dave  Jones  (page  37),  with  the  assistance  of  Armistead  Hunter,  kept 
the  poll-list  of  all  who  voted  the  Republican  ticket.  The  list,  containing 
697  names,  is  in  the  record  (page  38).  These  men  all  had  their  names 
recorded  as  voting  the  Eepublican  ticket,  and  all  but  two  or  three  went 
directly  to  the  polls  and  voted.  Matthew  Morse  issued  the  tickets. 
The  issuing  of  these  tickets  and  keeping  the  list  in  the  manner  shown 
by  the  evidence  was  according  to  prearrangement,  so  as  to  secure  an 
honest  count.  Hunter  says  there  are  600  to  700  colored  voters  in  the 
beat,  and  only  five  or  six  Democrats  among  them.  The  Eepublicaus 
were  warm  supporters  of  McDuffie. 

Here  we  have  a  prearranged  plan  for  ascertaining  the  vote — the  issu- 
ing of  tickets  one  at  a  time,  the  going  directly  to  the  polls  and  voting, 
and  the  request  of  each  voter  to  put  his  name  down  as  voting  for  Mc- 
Duffie. These  men  were  liepublicans,  they  voted,  and  while  in  the  act 
of  voting  declared  their  adherence  to  their  party. 

The  witnesses  were  cross-examined,  and  showed  both  intelligence  and 
carefulness  to  testify  only  to  their  personal  knowledge. 

Clark,  the  colored  Republican  inspector,  could  neither  read  nor 
write.  He  was  called  as  a  witness  for  contestee  and  says  that  some  of 
the  colored  men  changed  their  tickets,  and  that  the  election  was  hon- 
estly conducted.  l!^o  one  was  present  to  cross-examine  him.  He  was 
too  ignorant  to  detect  false  counting,  and  his  testimony  shows  his  evi- 
dent sympathy  with  the  Democrats,  while  it  further  discloses  the  fact 
that  the  return  could  not  be  true. 

M.  y.  Hill,  a  colored  man,  testifies  that  he  got  a  ticket  from  Morse, 
gave  it  to  Captain  Jones,  and  voted  a  Democratic  ticket.  The  care  of  the 
Republicans  in  keeping  their  list  is  shown  by  the  fact- that  Hill's  name 
is  not  on  it. 

T.  W.  De  Yampert  (page  548),  for  contestee,  testifies  that  he  was  reg- 
istrar of  voters  at  that  beat;  that  he  registered  from  75  to  80  colored 
voters  on  election  day,  and  gave  them  Democratic  ti  kets  and  saw  some 
of  them  go  to  the  court-house  with  them. 

C.  C.  Gewin  (page  398)  testifies  that  the  Republican  poll-keeper  could 
not  see  the  ballot-box,  and  that  Democratic  tickets  could  be  had  by  the 
voters. 

At  the  election  for  the  Forty-eighth  Congress  this  precinct  gave  630 
Republican  votes  and  194  Democratic  votes.  By  the  present  return 
party  majorities  are  almost  reversed. 

It  will  be  seen  that  the  voters  of  this  district  are  mostly  colored,  that 
neither  of  the  white  inspectors  or  clerks  is  called  to  testify,  only  the 
colored  inspector  who  could  not  read  or  write,  and  that  the  only  colored 
man  who  says  he  changed  tickets,  is  not  on  the  Republican  poll-list. 

It  is  further  to  be  observed  that  the  colored  men,  with  few  excep- 
tions, are  Republicans,  and  actively  testily  to  their  loyalty  to  the  party, 
and  therefore  when  a  return  shows  that  in  addition  to  the  colored  Dem- 


292  MCDUFFIE    VS.    TURPIN. 

ocrats  of  the  beat  at  least  377  of  the  colored  Republicans  voted  the 
Democratic  ticket,  against  their  expressed  determination  and  open  dec- 
laration at  the  polls,  it  is  evident  that  some  one  has  been  juggling  with 
the  tickets  or  returns,  especially  when  we  take  into  consideration  the 
further  fact  that  there  was  a  general  conspiracy  on  the  part  of  the  Dem- 
ocratic leaders  throughout  the  district  to  falsify  the  count. 

Hollow  Square. — From  Hollow  Square  beat  there  were  returned  531 
votes,  of  which  362  are  credited  to  Turpin.  Here,  by  pre-arrange- 
ment.  Motley  Rediford  (page  48)  issued  the  tickets,  and  S.  J.  Hunt 
(page  50)  kept  the  poll-list.  This  list,  as  found  in  the  record,  contains 
the  names  of  475  voters.  Each  of  these  witnesses  testifies  that  he  saw 
each  voter  from  the  time  he  took  his  ticket  until  it  was  delivered  to  the 
inspectors,  that  the  ticket  was  held  in  the  voter's  hand  so  that  it  could 
be  seen  from  the  time  it  was  taken  until  it  was  voted,  and  that  each 
name  was  registered  at  the  request  of  the  voter,  that  the  voters  fell 
into  line  behind  the  stand  of  this  clerk,  chosen  by  them,  and  went  for- 
ward to  vote  one  at  a  time.  This  poll-list  is  identified  by  the  witness 
who  kept  it,  and  by  a  committee  composed  of  L.  B.  Pierce,  Perry  Glow, 
and  Alfred  Borden. 

Six  colored  men  voted  Democratic,  only  50  whites  voted  that  day, 
according  to  this  evidence,  and  475  colored  men  voted  the  Republican 
ticket,  and  yet  the  return  gives  362  to  Turpin.  Here  again  the  colored 
inspector  was  illiterate,  and  no  attempt  is  made  by  contestee  to  sustain 
this  fraudulent  return. 

Gedarville. — The  returns  from  Oedarville  show  that  617  votes  were 
cast,  of  which  364  are  credited  to  Turpin. 

James  T.  Fredd,  a  very  intelligent  colored  man  (page  56),  kept  a  list 
of  490  colored  men  who  voted  for  McDuffie  and  the  Republican  ticket 
(page  57).  He  testifies  very  positively  that  he  was  some  30  feet 
from  the  polls,  and  saw  every  ticket  voted.  He  was  subjected  to  a 
cross-examination  extending  through  several  days ;  586  cross-questions 
were  asked  and  answered.  During  all  this  long  and  largely  frivolous 
cross-examination  he  kept  his  temper,  and  sustained  himself  as  an 
intelligent,  truthful,  and  painstaking  witness. 

The  conduct  of  contestee's  attorneys  in  this  cross-examination  can 
not  be  too  severely  condemned.  Its  purpose  was,  without  any  doubt, 
to  use  up  time  and  prevent  a  full  disclosure  of  all  the  frauds  perpetrated 
in  the  fourth  district,  advantage  being  taken  of  the  fact  that  the  com- 
missioners had  no  power  to  put  an  end  to  such  reprehensible  methods. 
This  witness  knew  of  one  colored  Democrat  in  the  beat. 

Dick  Crook  (page  80),  another  witness  for  this  beat,  is  asked  214 
cross-questions  of  like  character  with  those  put  to  Fredd  and  with  like 
purpose.  He  issued  the  tickets  and  helped  to  watch  the  voters,  and 
fully  comfirms  Fredd.  He  testifies  that  there  are  about  25  white  voters 
in  the  beat.  This  would  give  490  colored  Republicans,  25  white  and 
two  colored  Democrats.  Yet  the  returns  show,  if  true,  that  Turpin  got 
339  colored  votes,  or  3  out  of  every  4. 

For  the  contestee,  D.  W.  Ward  (page  548)  says  he  was  clerk  at  the 
election,  that  it  was  held  in  the  street  with  a  rope  stretched  around,  that 
there  was  a  crowd  around  the  polls,  and  that  Crook  could  not  see  how 
the  men  voted.  He  says  that  after  the  polls  were  closed  they  went  into 
a  vacant  store  and  counted  the  votes,  and  that  he  kept  a  correct  tally. 
No  friend  of  contestant  was  present  to  witness  the  count.  O'Donnell, 
Democrat,  and  Van  Hambright,  colored  Republican,  counted  the  votes. 

Van  Hambright  (page  550),  the  illiterate  colored  inspector,  who  was 
too  ignorant  to  know  how  the  votes  were  counted,  testifies  that  every- 


m'duffie  vs.  turpin.  293 

thing  was  fair.  Says  he  was  a  Eepubllcan,  but  is  not  asked  how  he 
voted.  No  one  was  present  on  the  part  of  contestant  to  cross-examine 
him.  He  is,  however,  considered  as  a  Republican  and  is  recorded  as 
such.  The  Democratic  inspector  who  counted  the  votes  is  not  called. 
The  return  is  evidently  a  fraud,  and  we  ascertain  the  vote  by  the  best 
attainable  evidence. 

DALLAS  COUNTY. 

Martin's  Station. — According  to  the  returns  411  votes  were  cast  at 
Martin's  Station,  383  being  credited  to  Turpin  and  280  to  McDufifie. 
Ned  Petway  (page  146),  au  intelligent  colored  man,  who  can  read  but 
can  not  write,  issued  and  saw  voted  324  liepublicau  rackets  with 
McDuffie's  name  on  them.  He  was  rigidly  cross  examined.  Acton 
Mappin  (page  154)  kept  a  pole  list  of  the  324  Republican  voters,  which 
list  is  in  the  record.  He  identified  the  list  and  testified  that  there 
was  no  chance  for  the  voter  to  exchange  tickets  from  the  lime  the 
ticket  was  taken  until  it  was  voted.  A  witness  for  contestee  names 
three  colored  men  who  voted  the  Democratic  ticket.  The  fact  that  their 
names  are  not  on  this  list  helps  to  confirm  its  accuracy. 

Nathan  Stratton  (page  153),  United  States  supervisor,  says  that 
there  are  about  480  colored  and  50  white  voters  in  the  beat,  and  that 
he  is  personally  acquainted  with  nearly  every  colored  man  in  the  beat, 
and  that  about  10  of  them  are  Democrats.  He  says  the  Republicans  hci  e 
were  earnest  McDufifie  men,  and  gave  time  and  money  to  help  his  can- 
vass. The  inspectors  and  clerks  were  all  Democrats,  including  the  col- 
ored inspector.  Stratton  says  that  when  the  count  was  finished,  Bam- 
berger,  a  Democratic  inspector,  announced  that  McDufifie  had  355  votes, 
and  he  answered  :  "All  right." 

Lewis  Bamberger  (page  558),  a  witness  for  contestee,  was  one  of  the 
inspectors.  He  is  not  a  citizen  of  the  United  States,  but  has  filed  his 
declaration  of  intention  to  become  such.  He  says  all  tlie  officers  of  the 
election  voted  the  Democratic  ticket.  Martin  received  the  tickets, 
handed  them  to  Wilson,  and  he  received  them  from  Wilson  and  deposited 
them  in  the  box.  Says  Martin  called  and  the  clerks  tallied  when  count- 
ing out.  He  swears  to  the  correctness  of  the  return,  and  yet  he  neither 
kept  the  tally  nor  read  the  tickets  to  the  clerks. 

He  avoided  giving  direct  answers  to  questions  about  the  situation  of 
the  polling  place,  but  after  taking  a  rest  he  was  obliged  to  own  that  the 
place  was  located  as  testified  to  by  contestant's  witnesses.  The  wit- 
ness prevaricates,  and  is  neither  frank  nor  candid  in  his  testimony. 
[Neither  of  the  other  inspectors  or  clerks  were  sworn,  and  Bamberger 
ffloes  not  deny  that  he  announced  the  vote  as  testified  to  by  the  super- 
|visor.  Anderson,  the  deputy  sherifit',  who  distributed  the  Democratic 
[tickets,  says  there  were  about  50  white  voters  there,  and  that  he  gave 
rDemocratic  tickets  to  some  colored  men,  but  refuses  to  say  that  he  did 
[bo  to  a  large  number.  He  names  3  (who  are  not  on  the  Republican  list) 
[and  says  there  are  20  more.  This  being  true,  it  would  only  make  73 
[Democratic  votes,  a  long  distance  from  383. 

Anderson  testifies  that  Petway  could  not  read,  but  Petway  showed 
[that  he  could  by  reading  to  the  commissioners. 

In  the  election  for  the  Forty-seventh  Congress  the  Republican  vote  of 
this  precinct  was  384,  and  for  the  Forty-eighth  Congress  304,  and  as 
proven  in  this  case  324.  The  supervisor  knew  that  the  vote  was  over 
300,  and  when  Bamberger  announced  it  as  355,  he  was  satisfied  that  the 
count  and  tally  had  been  fair,  but  he  did  not  know  that  when  the  returns 
reached  the  county  board  the  355  would  change  into  28. 


294  m'duffie  vs.  turpin. 

Pence. — According  to  the  returns,  208  votes  were  polled  at  Pence ;  188 
for  Turpin  and  88  for  McDui35e.  Kichmond  Isaacs  (page  152),  known 
and  called  also  Kichmond  Sanders,  issaed  the  Kepublican  tickets  at 
this  beat  and  saw  them  voted,  219  in  number.  He  reads  and  writes. 
Objection  being  made  to  the  evidence,  on  account  of  the  name  being 
given  as  Sanders,  he  is  called  again  (page  340),  and  again  repeats  his 
testimony,  under  difficulties,  nearly  two  pages  of  objections  being  re- 
corded to  take  up  time. 

0.  D.  Martin  (page  769)  was  the  United  States  supervisor  at  this  beat. 
He  stood  at  the  box  all  day,  and  saw  no  colored  man  change  his  ballot  as 
he  came  to  the  polls.  All  the  inspectors  and  clerks  were  Democrats. 
When  the  jjolls  were  closed  one  of  the  inspectors  took  the  ballot-box  to 
his  home,  some  200  yards  away,  and  when  the  supervisor  would  not  go 
to  that  house  to  witness  the  count,  the  box  was  brought  back,  and 
handed  to  the  colored  Democratic  inspector,  and  carried  away,  and  the 
count  was  not  made  until  the  following  day.  This  violation  of  the  law 
so  invalidates  the  returns  as  to  require  proof  of  their  correctness. 
Witness  says  that  there  are  only  three  colored  Democrats  in  the  beat, 
one  of  whom  was  an  inspector.  He  estimates  the  colored  vote  of  the 
beat  at  190,  it  being  only  an  estimate. 

Instead  of  calling  the  officers  of  the  election,  contestee  calls  one  Will- 
iam Bell  (page  646),  who  testifies  to  the  efiect  that  Isaacs  could  not 
have  seen  the  window  when  the  tickets  were  taken  in.  He  made  a  bad 
guess  at  population,  and  only  estimates  30  or  40  white  voters  in  the 
beat. 

Itemarks  upon  the  character  of  the  evidence  and  the  reversal  of  re- 
turns in  other  beats  will  apply  to  this  one  as  well.  We  count  it  accord- 
ing to  notice  of  contest. 

Mitchell's  Mill. — There  are  two  returns  from  this  beat,  neither  of 
which  was  counted  by  the  returning  board.  They  are  copied  into  the 
record  at  page  412.  The  facts,  as  established  by  the  evidence,  are  that 
one  of  the  regularly-appointed  inspectors  appeared  at  the  polling  place 
at  the  proper  time ;  none  of  the  other  officers  appearing  before  9 
o'clock.  He  accordingly  organized  an  election  board,  in  strict  accord- 
ance with  the  law.  The  election  was  held  and  the  returns  made,  as  the 
law  directs,  and  as  a  result  McDuffie  received  345  votes.  No  Demo- 
crats appeared  at  the  polls,  evidently  supposing  that  an  election  would 
not  be  held,  or  that  if  it  was  held  by  honest  officers  it  would  not  be 
counted- 

The  correctness  of  the  return  and  the  regularity  of  the  election  are 
proved  by  the  testimony  of  Abram  Carson  (page  157)  and  James 
Waller  (page  158).  Where,  or  by  whom,  any  other  election  was  held, 
nowhere  appears  in  the  evidence,  nor  are  we  informed  anything  about 
the  other  return,  which  gave  Turpin  30  votes,  except  that  the  county 
board  did  not  count  it.  There  are  about  400  colored  voters  in  the  beat 
and  50  whites. 

Liberty  Hill. — Ifo  return  from  this  precinct  is  found  among  the  rec- 
ords of  the  county.  The  evidence  shows  that  the  Democratic  inspectors 
failed  to  appear  at  the  polling  place,  nor  did  any  of  the  Democrats  of 
the  beat  appear  during  the  day.  It  was  the  intention  to  have  no  elec- 
tion here,  but  the  colored  inspector  was  on  hand,  as  was  the  United 
States  supervisor.  An  election  board  was  organized  according  to  law, 
the  election  held,  and  197  votes  cast  for  McDuffie.  Returns  were  made 
out  according  to  the  vote ;  what  became  of  the  returns  designed  for  the 
county  board  does  not  appear,  but  the  supervisors  made  returns  to  the 
chief  supervisor  (page  763).    The  voters  are  not  to  be  disfranchised  by 


m'duffie  vs.  turpin.  295 

any  neglect  of  the  officers  after  the  election,  if  the  correct  vote  can  be 
ascertained.     In  this  case  it  is  duly  proved. 

Burnsville. — Keturus  show  497  votes  cast,  all  except  22  of  them  cred- 
ited to  Turpin.  It  appears  that  the  Democrats  had  a  ballot-box  (its 
contents  unknown)  concealed  in  a  room  adjoining  the  polling-place,  and 
that  before  the  time  for  counting  came  this  box  was  discovered  by  some 
Republicans  and  carried  away.  This  interruptetl  the  Democratic  pro- 
gramme and  forced  a  delay  in  Ihe  count  to  another  day  and  place. 
Witnesses  for  contestant  are  H.  M.  Hall  (pages  161,  173,  181)  andCleo. 
Smith  (pages  223,  238,  Exhibit  page  240).  Here  as  elsewhere  the  Ee- 
publicans  kept  an  outside  poll-list,  which  is  iu  the  record. 

Hall,  an  educated  and  intelligent  colored  Republican,  kept  the  tally 
of  288  Republican  voters,  who  cast  their  votes  for  McDuffie,  and  had 
their  names  recorded  as  so  voting,  and  Hall  saw  all  but  5  put  these 
identical  ballots  given  them  into  the  hands  of  the  inspectors.  He  is 
subjected  to  a  long  and  harassing  cross-examination  upon  immaterial 
matters,  with  the  apparent  purpose  of  getting  up  a  scare  about  the 
stolen  ballot-box.  Caught  with  a  stuffed  box  concealed,  they  prevented 
the  production  of  the  box  by  making  it  appear  to  the  witnesses  that  the 
man  who  had  secured  the  box  had  coanmitted  agreat  crime.  In  almost 
any  other  part  of  the  country  the  box  would  have  been  forthcoming, 
and  instead  of  the  man  who  had  secured  it  being  in  danger  of  the  pen- 
itentiary, the  men  who  had  prepared  it  would  be  prosecuted  and  con- 
victed. 

Smith  fully  confirms  the  testimony  of  Hall.  He  not  only  distributed 
the  tickets,  but  helped  to  keep  watch.  It  is  needless  to  go  into  details, 
because  the  method  here  was  but  a  repetition  of  the  one  adopted  all 
over  the  district  to  preserve  the  evidence  of  the  true  vote. 

P.  R.  King  (page  555)  testifies  in  rebuttal  that  he  distributed 
Democratic  tickets  that  day.  Thinks  that  Hall  could  not  see  the 
voter  all  the  time  on  account  of  a  paling  fence.  Says  that  there 
are  from  400  to  500  colored  voters  in  the  beat,  and  that  he  gave 
colored  people  that  day  from  50  to  100  tickets.  Is  questioned  as  to 
whether  or  not  it  is  well  known,  and  made  a  joke  of,  that  the  colored 
people  are  cheated  out  of  their  votes,  and  answers  evasively,  but  ad- 
mits that  so  far  as  he  is  concerned  he  is  determined  to  have  white  su- 
premacy, regardless  of  the  colored  majority.  His  testimony,  on  cross- 
examination,  strengthens  rather  than  weakens  the  evidence  for  con- 
testant. 

David  Gardner,  colored.  United  States  supervisor  (page  564),  George 
R.  Mason,  (page  564),  and  R.  D.  Berry  (page  565),  white  inspectors,  all 
testify  to  the  accuracy  of  the  count.  No  one  was  i)resent  to  cross-ex- 
amine these  witnesses,  their  testimony  is  exceedingly  short,  and  does 
I  not  disclose  the  fact  that  the  count  was  made  on  the  day  after  the 
election,  at  another  place,  nor  do  they  attempt  to  account  for  the 
whereabouts  of  the  box  iu  the  intervening  time.  This  of  course  renders 
their  evidence  iu  regard  to  the  count  valueless.  Berry,  who  is  a  lawyer, 
and  one  of  the  attorneys  for  contestee  in  this  case,  says  the  law  requires 
two  ballot  boxes,  evidently  trying  to  excuse  the  presence  of  a  concealed 
box ;  but  he  is  mistaken  iu  his  statement  of  the  law,  and  probably 
knew  better. 
The  excuse  given  for  not  counting  the  ballots  at  the  close  of  the  elec- 
tion was  that  they  were  afraid  of  a  large  mob  of  negroes  who  were  clam- 
'  oring  outfside,  and  Berry  tried  to  prove,  when  cross  examining  Hall, 
that  he  had  said  he  would  proceed  with  the  count  if  the  negroes  would 
go  away  and  quit  clamoring  to  have  the  vote  counted.    Probably  it  did 


296  m'duffie  vs.  turpin. 

not  occur  to  Berry  when  getting  up  this  excuse  for  removing  the  box, 
that  according  to  iiis  subsequent  retnrn,  only  22  negroes,  all  told,  voted 
the  llei)ublican  ticket,  and  that,  if  his  return  is  true,  more  than  400  of 
the  negroes  were  Democrats.  It  is  indeed  lamentable  that  three  inspec- 
tors, backed  by  from  20  to  40  white  men,  and  400  negroes,  were  afraid 
of  22  Republican  negroes  who  wanted  to  have  the  vote  counted  before 
another  stutt'ed  box  could  be  obtained.  But  of  course  there  were  more 
than  22  Republican  negroes;  the  return  was  a  fraud,  and  the  commit- 
tee count  the  vote  as  the  evidence  shows  it  to  have  beeu  cast. 

Union. — According  to  the  returns,  384  votes  were  cast  at  Union  beat, 
of  which  Turpin  is  credited  with  299,  and  McDuflBe  with  85.  The  evi- 
dence in  this  case  is  that  of  Hector  Jones  (page  167),  Oscar  Masely 
(page  172)  and  the  poll-list  of  Republican  voters  (pages  168-169-171), 
and  also  the  list  of  Democratic  voters.  The  evidence  is  of  like  charac- 
ter with  that  of  other  precincts,  the  keepers  of  the  list  being  extremely 
careful,  and  going  to  the  extent  of  keeping  a  list  of  Democratic  as  well 
as  Republican  votes.  The  list  is  in  the  record  and  shows  33(>  Repub 
lican  and  33  Democratic  votes.  It  is  in  no  way  contradicted.  We  count 
44  votes  for  contestee  as  conceded  in  the  notice  of  contest,  although  as 
a  matter  of  fact  he  only  received  33.  The  election  ofiBcers  at  this  beat 
were  all  Democrats. 

Valley  Greek. — According  to  the  returns  490  votes  were  cast  at  this 
l)recinct,  401  being  credited  to  Turpin.  The  evidence  is  of  like  charac- 
ler  with  that  of  other  precincts;  a  complete  poll-list  of  the  Republican 
voters  was  kept  and  is  in  evidence,  and  shows  that  382  instead  of  89 
votes  were  cast  for  McDufhe.  C.  H.  Myatt  (page  179)  and  J.  H. 
Goldsby  (page  392)  were  the  Bepublican  managers  at  the  election,  and 
furnish  the  proof.  A  Republican  United  States  supervisor  was  ap- 
pointed at  this  poll,  but  was  not  permitted  to  serve.  He  then  kept  the 
outside  poll-list.  John  Mcllwain,  the  returning  officer,  who  was  very 
actively  engaged,  in  a  way  not  at  all  to  his  credit,  in  the  contest  in 
18«6,  attempted  to  stop  the  keeping  of  this  list  and  threatened  to  have 
the  witness  arrested.  The  work  was  temporarily  stopped  and  some 
votes  missed,  and  afterwards  it  was  kept  on  the  backs  of  tickets,  appa- 
rently to  avoid  being  seen  and  so  prevent  arrest.  The  so-called  Re- 
publican inspector  was  a  "professional." 

To  sustain  this  return  one  of  the  clerks  of  the  election  was  called 
and  testified  that  everything  was  fair.  He  was  sure  that  the  count  was 
honest,  forgetting  that  he  had  no  means  of  knowing  further  than  that 
he  kept  a  correct  tally.  He  could  not  know  whether  the  tickets  were 
correctly  read  to  him  or  correctly  deposited  in  the  box.  A  disreputable 
colored  man  is  also  called  to  prove  that  he  distributed  Republican  tickets 
with  Turpin's  name  on  them.  His  evidence  in  chief  amounts  to  very 
little  that  is  material,  and  that  little  is  utterly  demolished  by  cross- 
examination.  None  of  the  inspectors  are  called  as  witnesses.  There 
are  between  500  and  600  voters  in  the  beat,  all  but  35  or  36  being  Re- 
publicans. 

Smiley. — No  return  was  counted  for  Smiley  by  the  county  board. 
Two  of  the  regularly  appointed  inspectors  and  a  United  States  super- 
visor were  present  at  the  time  for  opening  the  polls,  but  the  Democratic 
inspector  said  he  had  no  time  to  fool  with  the  election  and  refused  to  act. 
Thereupon,  the  other  inspectors  organized  an  election  board  as  provided 
by  law.  The  election  was  regular  in  every  particular.  No  Democrats 
turned  out  to  vote,  but  86  Republicans  did.  Returns  were  duly  made 
and  delivered  to  the  sheriff  but  were  not  counted.    Returns  were  also 


m'duffie  vs.  turpin.  297 

made  to  the  chief  supervisor  (pages  194,  365).     That  this  return  should 
be  counted  is  substantially  conceded. 

Fine  Flat. — Three  hundred  and  twenty  nine  votes  were  returned  from 
Pine  Flat,  249  of  tbem  lor  Turpin.  There  are  in  the  beat  about  200 
colored  voters  and  25  white  voters.  The  inspectors  were  two  white 
Democrats  and  one  Tom  Cleveland  (page  428),  who  says  he  is  neither  a 
Kepubiican  nor  a  Democrat,  but  a  "straight-out."  He  can  neither  read 
nor  write,  and  is  entirely  under  the  control  of  one  of  the  Democratic 
inspectors.  Like  satisfactory  proof  as  in  other  precincts  shows  that 
]40  votes  were  cast  for  McDuffie.  Ben.  Brown  (pages  195-7).  S. 
Grumbles  (page  377).    E.  Smith  (pnge  773). 

To  rebut  this  testimouytlie  contestee  calls  Tom  Cleveland,  the  colored 
inspector,  to  swear  that  everything  was  right,  although  he  could  neither 
read  nor  write  and  knew  nothing  about  whether  the  count  was  correct 
or  not.  The  return  for  this  precinct  contained  many  more  votes  than 
there  were  voters  in  the  beat. 

Vernon. — One  hundred  and  forty-seven  votes  are  returned  from  Ver- 
non, only  8  being  credited  to  McDiiffie.  The  proof  shows  that  121 
colored  liepublicans  voted  for  him  and  that  11  white  and  8  colored  men 
voted  for  Turpin.  The  Republican  inspector  could  neither  read  nor 
write,  but  he  was  honest.  He  received  the  votes  and  handed  them  to 
a  Democratic  inspector ;  says  the  Republicans  did  not  change  their  bal- 
lots when  coming  towards  tlie  polls.  After  the  polls  were  closed  the 
ballot-box  was  carried  to  Lawyer  John's  plantation,  where  it  was 
counted.  Neither  of  the  white  inspectors  or  clerks  is  called  to  sustain 
tlie  return  after  this  unlawful  act  of  removing  the  box. 

One  J.  L.  Campbell  is  called  to  prove  that  colored  men  threw  away 
their  Republican  tickets,  and  took  Democratic  tickets  from  him  and 
voted  them.  He  ventured  to  name  two,  and  was  promptly  contra- 
dicted by  the  voters  themselves,  who  swore  they  did  no  such  thing. 
Lawyer  John,  to  whose  plantation  the  box  was  taken,  is  also  examined, 
but  not  about  the  count.  His  evidence  was  given  to  show  that  colored 
men  voted  the  Democratic  ticket,  and  that  he  was  active  in  seeing  to 
it  that  the  Republican  managers  did  not  interfere  with  the  colored  men. 
We  do  not  think  his  evidence  overturns  the  evidence  given  for  con- 
testant, though  to  some  extent  it  weakens  it.  The  witness  was  not 
cross-examined,  and  there  is  a  dispute  about  notice  to  take  his  depo- 
sition. 

The  fact  of  the  illegal  removal  of  the  box  before  counting,  of  the  vio- 
lation oi  the  spirit  of  the  law  in  the  appointment  of  the  Republican  in- 
spector, and  the  failure  to  sustain  the  return  by  oral  proof,  under  the 
■  circumstances,  leaves  the  return  discredited,  and  the  true  vote  must  be 
; ascertained  by  the  best  attainable  evidence.  Evidence  for  contestant 
imay  be  found  on  pages  199,  201,  764-766.  For  contestee  on  pages  641- 
r650. 

Dublin. — Eighty-seven  votes  were  returned  from  Dublin,  65  of  the 
'number  being  credited  to  Turpin.  The  evidence,  of  like  character  with 
•that  heretofore  given,  shows  that  49  of  these  votes  were  cast  for  Mc- 
[Duflfie.  None  of  the  offiojers  of  the  election  were  called  to  sustain  the 
ireturn,  but  a  witness  is  called  to  testify  that  the  Republican  managers, 
[from  their  position,  could  not  certainly  know  how  the^  votes  were  cast. 
.The  return  is  imi)eached,  and  we  count  the  vote  as  proved. 

Elm  Bluff. — One  hundred  and  one  votes  were  returned  from  this 
precinct  and  73  of  them  credited  to  Turpin.  The  same  method  was 
.pursued  in  this  precinct  as  in  the  others.  The  Republican  managers 
fattended  to  putting  in  their  vote,  kept  a  complete  list  of  all  who  voted 


298  m'duffie  vs.  turpin. 

the  Republican  ticket  and,  in  this  precinct,  of  all  who  voted  the  Dem- 
ocratic ticket.  Seventy-six  voted  Eepublicau  and  15  Democratic. 
There  are  only  15  Democrats  in  the  beat.  The  evidence  is  clear  and 
uncontradicted  (pages  233,  234,  236). 

Brown'' s. — Three  hundred  and  twenty-five  votes  are  returned  from 
this  predict,  of  which  number  Turpin  is  credited  with  235.  There  are 
in  the  beat  about  300  eolored  Republicans,  and  from  12  to  16  white 
democrats.  For  the  Forty-eighth  C' ingress  the  vote  was  :  Republican, 
304;  Democratic,  10.  Here  tlie  outside  poll-list  was  kept,  as  in  other 
places,  and  is  in  evidence,  containing  309  names,  all  who  voted  of  both 
parties  according  to  the  outside  poll.  Charles  Walker,  the  United 
►States  supervisor,  was  present  during  the  whole  election,  kept  the 
count  when  the  votes  were  being  counted,  and  testifies  that  the  result 
was:  McDuffle  265,  and  Turpin  16;  that  the  inspectors  did  not  foot  up 
their  tally,  but  simply  signed  a  sheet  of  paper  with  the  tally  on  it,  and 
delivered  the  tin  box  to  the  returning  officer ;  that  he  saw  the  box  the 
next  day  in  Selma,  at  the  sherili's  office,  and  that  the  seal  had  been 
tampered  with. 

This  is  direct  and  positive  testimony  of  the  United  States  supervisors 
as  to  the  actual  result  of  the  count  and  the  subsequent  tampering  with 
the  box,  and  that  the  return,  or  apology  for  a  return,  made  out  was  not 
the  return  afterwards  found  among  the  records.  None  of  these  officers 
are  called  to  rebut  this  testimony,  but  an  outsider  is  called  to  prove  the 
handwriting  of  the  inspectors  .The  return  was  a  fraud.  (Evidence for 
contestant,  pages  342,  345,  348;  for  coutestee,  page  584.)  Attention  is 
called  to  the  lengthy  objections  made  for  delay  during  the  taking  of 
this  testimony. 

Chillatohie. — The  returns  from  this  precinct  were  rejected  by  the  re- 
turning board  for  technical  reasons,  and  no  vote  counted.  The  returns 
were  duly  proved,  and  it  is  admitted  that  they  ought  to  be  counted, 
giving  McDuffie  144  votes.  The  refusal  to  count  this  return,  in  direct 
disregard  of  the  decision  of  the  supreme  court  of  the  State,  throws 
light  on  the  situation  in  the  district,  and  the  attitude  of  the  county 
returning  board. 

River. — Two  hundred  and  ninety-seven  votes  were  returned  from  River 
beat,  283  being  credited  to  Turpin,  and  only  14  to  McDuffie.  The  evi- 
dence shows  that  there  are  about  300  colored  voters  in  the  beat,  and 
25  or  26  whites,  and  that  all  of  the  colored  men  are  Republicans  except 
two  or  three.  The  proof  shows  that  200  voted  the  Republican  ticket 
and  for  McDuffie.    There  is  no  attempt  to  rebut  this  evidence. 

CarlowviUe. — Here  the  election  was  duly  and  lawfully  held,  but  the 
county  board  refused  to  count  the  returns,  as  in  Chillatchie.  It  is  con- 
ceded that  the  return  ought  to  be  counted.  This  adds  101  to  McDuffie's 
vote. 

Woodlawn. — According  to  the  returns,  176  votes  were  cast  at  Wood- 
lawn,  Turpin  being  credited  with  159,  and  McDuffie  with  17.  The  un- 
controverted  evidence  shows  that  136  votes  were  cast  for  .McDuffie,  and 
that  there  are  only  about  40  Democratic  voters  in  the  precinct. 

Marion  Junction  and  Old  Town. — The  frauds  perpetrated  in  these  two 
precincts  are,  in  like  manner,  fully,  proved,  and  we  count  them  accord- 
ing to  the  evidence,  as  limited  by  the  notice  of  contest.  At  Old  Town 
the  return  was  one  of  the  boldest  frauds  in  the  whole  list. 

BoyMns. — The  returns  from  this  precinct  were  not  counted  by  the 
county  board.  They  showed  for  the  Republican  electors  110,  and  for 
the  Democratic  electors  17,  but  for  Turpin  117,  and  for  McDuffie  10. 


T 


m'duffie  vs.  turpin.  299 

This  was  evidently  effected  by  taking  the  1  from  the  110  and  placing 
it  before  the  17.  The  vote  was  evidently  cast  as  counted  by  the  com- 
mittee. 

This  closes  the  review  of  the  various  precincts  where  the  committee 
have  rejected  the  returns  and  counted  the  vote  proved. 

It  will  be  seen  that  the  evidence  throughout  the  district  is  of  a  simi- 
lar character,  the  result  of  intelligent  organization  to  prevent  fraud 
and  to  prove  the  actual  vote  by  other  means  than  the  returns.  It  shows 
the  existence  of  a  universal  belief  that  the  returns  could  not  be  relied 
upon,  and  that  that  belief  was  justifiable. 

The  evidence  is  a  direct  attack  upon  the  integrity  of  the  officers  hold- 
ing the  election,  so  far  as  these  officials  were  white  Democrats,  upon 
matters  connected  with  the  exercise  of  the  right  of  suffrage  by  colored 
men.  If  these  officers  would  falsify  the  returns,  it  follows  that  no  re- 
liance could  be  placed  in  the  contents  of  the  ballot-boxes  left  in  their 
hands  after  *the  election.  The  law  of  the  case  is  clear,  provided  the 
evidence  is  satisfactory  and  of  a  character  relied  upon  by  judicial  tri- 
bunals. 

The  violation  of  the  letter  and  spirit  of  the  law  in  the  appoint- 
ment of  the  election  officers,  so  universal  as  to  show  deliberate  intent, 
the  universal  knowledge  of  the  purpose  of  such  violation,  and  all  the 
various  acts  of  the  partisans  of  contestee,  including  all  the  officials 
throughout  the  district,  are  what  give  weight  and  character  to  the  evi- 
dence which  shows  the  results  in  individual  precincts,  or  beats,  as  they 
are  called  in  Alabama. 

The  admissibility  of  this  kind  of  testimony  has  been  fully  recognized 
by  the  courts,  and  its  weight  in  this  class  of  cases  admitted. 

Judge  Howell  E.  Jackson,  late  a  United  States  Senator  and  now  a 
judge  of  eminence,  in  his  charge  to  the  jury  in  the  recent  trial  of  Tennes- 
see election  otficers  for  violating  the  Federal  election  laws  at  Memphis, 
Tenu.,  used  the  following  language : 

Said  witnesses  testified  that  the  voting  population  of  the  fourth  civil  district  of 
Fayette  County  on  November  6,  1888,  numbered  between  490  and  500— say  about  500, 
That  about  80  to  100  of  sucli  voters  were  white  men  or  Democrats  ;  the  remainder, 
numbering  about  400,  were  colored  men  and  Republicans.  That  on  the  day  of  the 
election  there  was  a  large  turn  out  of  such  voters.  That  the  colored  voters  present 
exceeded  300  in  number.  John  McGowan,  the  Republican  chairman  of  the  district, 
states  that  there  were  over  SCO  colored  Republican  voters  present.  That  he  directed 
many  or  most  of  them  to  go  for  their  tickets  to  John  C.  Reeves,  who  occupied  a  posi- 
tion 10  or  20  steps  from  the  voting  place,  and  was  distributing  Republican  tickets  to 
Republican  voters.  That  Ree\e8'8  position  was  in  full  view  of  the  window  at  which 
the  ballots  were  handed  in  to  the  ofiScer.  That  he  saw  many  of  the  tickets  de- 
posited or  handed  in  to  the  officer  holding  the  election,  and  can  not  swear  to  the 
actual  number  that  voted  that  had  Republican  tickets.  John  C.  Reeves  testified 
before  yon  that  he  was  present.  That  he  had  in  his  possession  Republican  tickets,  a 
sample  of  which  is  produced  in  evidence,  having  ©n  it  a  full  list  of  Republican  candi- 
dates, from  Presidential  electors  and  Congressmen  down  to  State  and  county  officers. 
That  he  issued  to  the  colored  voters  on  that  day,  upon  their  application  for  the  same, 
325  of  those  tickets  while  at  the  voting  place.  That  on  his  way  home  he  met  four  or 
five  other  voters  going  to  the  polls,  to  whom  he  gave  Republican  tickets ;  the  names 
of  two  of  those  voters  he  finds  upon  the  poll-list  at  Nos.  407  and  409.  Reeves  further 
atates  that  he  saw  over  one  hundred  of  those  to  whom  he  gave  tickets  go  directly 
from  him  to  the  window  where  the  votes  were  received  and  hand  them  in  to  the 
officer  holding  the  election.  He  could  not  swear  that  they  actually  deposited  the 
identical  tickets  received  from  him,  but  he  saw  no  change  of  ticket  or  change  of 
purpose  on  the  part  of  the  voter  after  procuring  from  himself  the  Republican  ticket. 
He  recognizes  on  the  poll-list  the  names  of  about  one  hundred  of  such  Republican 
voters.  Now,  gentlemen  of  the  jury,  Reeves  and  McGowan  are  iu  no  way  impeached, 
nor  are  their  statements  in  any  wise  contradicted.  They  stand  before  you  as  in  every 
way  credible  witnesses,  and  their  testimony  is  entitled  to  full  faith  and  credit.  If 
the  case  for  the  prosecution  stopped  with  Reeves  and  McGow&n,  it  would  present 


300  m'duffie  vs.  turpin. 

a  case  of  circumstantial  evideuce  as  to  the  vote  actually  cast  having  exceeded  that 
which  was  fcounted  and  returned  by  the  election  officers  and  judges.  When  circum- 
stantial evidence  is  relied  on  to  convict,  as  counsel  for  defense  has  suggested,  it 
should  be  of  such  conclusive  character  as  to  exclude  any  remote  hypothesis  of  inno- 
cence. 

It  is  to  be  remembered  that  the  last  remark  has  reference  to  the 
proof  required  to  convict  in  a  criminal  case. 

Speaking  in  regard  to  individual  voters  who  had  testified  to  their 
votes,  he  said : 

If  the  prosecution  had  simply  shown  that  each  one  of  these  witnesses  was  seen 
going  to  the  poll  with  a  Republican  ticket  in  his  hand  which  he  had  received  from 
Reeves,  with  a  declaration  of  his  intention  to  vote  said  ticket,  such  facts  ana  acts 
would  have  constituted  circumstantial  evidence  that  they  voted  said  ticket.  ' 

It  is  to  be  remembered  that  the  evidence  in  this  case  is  more  direct 
and  more  certain  than  was  the  evidence  upon  which  Judge  Jackson's 
charge  was  based,  and  that  the  witnesses  and  voters  take  much  greater 
pains  to  be  able  to  know  the  exact  facts. 

Kemembering  who  Judge  Jackson  is  and  what  his  party  affiliations 
are,  and  that  the  men  on  trial  were  citizens  of  his  own  State  and  mem- 
bers of  the  political  party  to  which  he  belongs,  this  charge  will  cer- 
tainly be  accepted  as  of  the  very  highest  authority. 

That  any  one  should  doubt  the  admissibility  of  this  kind  of  evidence 
and  its  sufficiency,  under  the  circumstances  surrounding  this  case,  is 
somewhat  surprising,  and  yet  it  was  gravely  argued  before  the  commit- 
tee that  the  evidence  was  not  only  insufficient  but  altogether  incompe- 
tent. 

The  enormous  frauds  shown  by  this  record,  by  which  an  honest  ma- 
jority of  nearly  5,000  (and  there  are  strong  grounds  for  suspecting  it  to 
be  much  larger  still)  was  turned  into  a  minority  of  more  than  13,000, 
have  necessarily  made  this  report  somewhat  lengthy. 

The  committee  recommend  the  adoption  of  the  following  resolu- 
tions : 

Resolved,  That  Louis  W.  Turpin  was  not  elected  a  Representative  in 
the  Fifty-first  Congress  from  the  Fourth  Congressional  district  of  Ala- 
bama, and  is  not  entitled  to  the  seat  as  such  Eepreseutative. 

'  Resolved,  That  John  V.  McDuffie  was  duly  elected  a  Representative 
in  the  Fifty-first  Congress  from  the  Fourth  Congressional  district  of 
Alabama,  and  is  entitled  to  his  seat  as  such  Representative. 


VIEWS  OF  THE  MINORITY. 


(1)  Evidence. 

Each  party  should  be  required  to  produce  the  highest  and  best  evi- 
dence attainable. 

(2)  Evidence.    Evidence  in  chief  taken  in  time  of  rebuttal  should  not 
be  considered. 

Granting  to  the  contestant  all  that  he  can  reasonably  claim  (see 
syllabus,  p.  255),  there  still  remains  for  contestee  a  majority  of  over 
9,000. 

301 


A 


VIEWS  OF  THE  MINORITY. 


May  26, 1890. — Mr.  Crisp,  from  the  Committee  on  Elections,  submit- 
ted tlie  following  as  the  views  of  the  minority : 

The  undersigned  not  agreeing  with  the  majority  of  the  Committee  on 
Elections  in  their  finding  in  the  above-stated  case,  herein  express  their 
dissent  anfi  the  reasons  therefor. 

The  majority  report  correctly  sets  out  the  official  returns  of  the  votes 
cast  in  the  Fourth  district  of  Alabama  at  the  election  held  November 
6,  1888. 

To  so  much  of  the  report  as  is  devoted  to  what  the  committee  denom- 
inate the  "recent  political  history  of  the  district"  the  undersigned  do 
not  deem  it  necessary,  nor  indeed  proper,  to  reply.  Under  the  Constitu- 
tion of  the  United  States  this  House  must  determine  the  "  election, 
qualification,  and  return  of  its  members."  We  believe  such  "  determina- 
tion "  should  be  arrived  at  in  accordance  with  the  legal  evidence  con- 
tained in  the  record  and  the  well-established  principles  of  law. 

The  general  rule  is  that  the  ordinary  rules  of  evidence  apply  as  well  to  election 
contests  as  to  other  cases.  The  evidence  must,  therefore,  be  confined  to  the  point  in 
issue,  and  must  be  relevant.  The  burden  of  proof  is  always  upon  the  contestant  or 
the  party  attacking  the  official  returns  or  certificate.  The  presumption  is  that  the 
officers  of  the  law  charged  with  the  duty  of  ascertaining  and  declaring  the  result 
have  discharged  that  duty  faithfully.    (McCrary  on  Elections,  sec.  306.) 

The  law  applicable  to  this  case  is  plain  and  well  established  and  is 
hero  referred  to. 

Section  252,  Code  of  Alabama,  authorizes  the  courts  of  county  com- 
missioners in  their  respective  counties  to  establish  election  precincts. 

Section  258  requires  the  probate  judge,  sheriff,  and  clerk  of  each 
county  to  provide  one  ballot-box,  and,  if  they  deem  necessary,  not  ex- 
ceeding three,  for  each  voting  place. 

Section  259  requires  the  same  officers  to  appoint  for  each  voting 
I)lace  three  inspectors,  two  of  whom  shall  be  members  of  opposing  po- 
litical parties,  if  practicable,  and  one  returning  officer. 

Section  260,  the  sheriff  is  the  returning  officer  of  the  county. 

Section  262,  the  polls  must  be  opened  before  9  o'clock  on  the  morn- 
ing of  the  election. 

Section  264,  two  clerks  are  to  be  appointed  by  the  inspectors. 

Section  265,  before  opening  the  polls  the  inspectors  and  clerks  must 
take  an  oath  to  perform  their  duties  at  such  election  according  to  law. 

The  return  must  stand  until  such  facts  are  proven  as  to  clearly  show  that  it  is'not 
true.     (McCreary  on  Elections,  438  and  authorities  there  cited.) 

The  object  of  this  investigation  should  be  to  ascertain  the  truth.  In 
all  such  investigations  each  party  should  be  required  to  produce  the 
highest  and  and  best  evidence  attainable.     This  rule  of  evidence  will 

303 


304  MCDUFFIE    VS     TDRPIN. 

not  be  disputed.    In  the  light  of  this  rule  we  will  proceed  at  once  to 
an  examination  of  the  facts  contained  in  the  record. 

LOWNDES  COUNTY. 

In  this  county  the  report  of  the  majority  of  the  committee  attacks 
the  appointment  of  the  precinct  iuspectors. 

We  propose  to  give  the  conclusions  of  the  majority  in  the  language  of 
the  report,  and  then  follow  with  the  testimony  upon  which  they  base 
their  judgment. 

We  quote  from  page  8  of  the  report : 

In  Lowndes  County  the  precinct  inspectors  were  appointed  ou  tLe  25tb  day  of 
September,  A  few  days  afterwards  the  contestee  visited  the  county,  and  on  the  Gth 
day  of  October  an  entire  change  was  made  in  the  list  of  inspectors  appointed  to  repre- 
sent the  Eepublicans.  The  first  list  was  satisfactory,  and  made  up  in  the  greater  i)art 
of  intelligent  men.  The  second  list  was  made  without  any  authority  in  the  law,  and 
its  composition  shows  that  the  change  was  made  for  a  dishonest  purpose.  Judge 
Coffey  (Record,  page  745)  says  that  the  reason  for  this  change  was  that  the  sheriff  and 
several  other  gentlemen  told  him  that  the  Republican  inspectors  being  school-teaclhers 
did  not  wish  to  serve  and  mix  up  in  politics.    Hence  the  change. 

We  quote  now  from  the  deposition  of  Judge  A.  E.  Coffey  (Record, 
page  745): 

Q.  At  what  time  or  about  what  time  did  you  make  said  appointment  of  said  in- 
spectors ? — A.  About  the  2bth  or  26th  of  September,  1888. 

Q.  If  there  was  any  other  appointment  made  of  the  inspectors  by  your  board,  or 
any  cliange  made  in  said  appointments,  state  about  when  that  was  done,  to  the  best 
of  your  recollection. — A.  The  board  of  supervisors  met  again  about  ten  days  after  the 
appointment  of  the  inspectors  and  revised  the  list,  making  a  number  of  changes. 

Q.  At  whose  instance  or  request  was  this  second  meeting  of  the  board,  and  at 
whose  instance  or  for  what  reason  were  those  changes  made  ?  Please  state  fully  and 
particularly. — A.  The  sheriff  and  one  of  the  Bepuhlican  inspectors  and  other  gentlemen, 
whose  names  I  can  not  remember  now,  informed  me  that  a  number  of  the  Republican  in- 
spectors who  had  been  appointed  declined  to  serve  as  such  inspectors,  on  the  grounds  that  they 
were  school-teachers  and  did  not  want  to  mix  up  in  politics;  and  the  board  of  supervisors 
was  called  together  to  remedy  this  defect  in  the  list  of  inspectors. 

Q.  Was  there  no  other  reason  or  excuse  made  by  those  persons  who  communicated 
those  facts  to  you  why  those  changes  should  be  made  ?  If  so,  what  reason  or  excuse 
was  given  by  them  ?  Please  state  fully. — A.  No  other  motive  prompted  me  to  make  the 
changes  except  as  above  stated. 

Q.  State  whether  or  not  Mr.  L.  W.  Turpin  was  here  just  before  or  during  the  time 
of  this  session  of  the  board  at  which  the  changes  were  made  of  the  inspectors. 
Please  state  when  it  was  relative  to  the  meeting  of  the  board,  and  how  long  he  remained 
here.    State  fully. 

(Contestee  objects  to  this  question  on  the  grounds  that  it  is  illegal  and  irrelevant.) 

A.  Mr.  Turpin  was  here  on  the  28th  and  29th  of  September,  1888,  which  was  two 
or  three  days  after  the  appointment  of  inspectors,  and  seven  or  eight  days  before  the 
list  of  inspectors  was  revised  and  changed. 

Q.  Did  you  have  any  knowledge  of  the  fact  that  Mr.  Turpin  made  complaint  to 
any  of  the  board  as  to  the  inspectors  that  had  been  appointed  at  your  first  meeting 
and  that  he  requested  or  solicited  any  member  of  the  board  to  make  any  changes  of 
the  appointment  of  inspectors  ?    If  he  did,  please  state  all  you  know  on  the  subject. — 

A.  Mr.  Turpin  stated  to  me  on  his  arrival  here,  on  the  28th  or  29th  of  September, 
1888,  that  he  tvas  perfectly  satisfied  ivith  the  list  of  inspectors  that  had  been  appointed  and 
that  he  desired  that  there  should  be  a  school-teacher  or  other  intelligent  Republican  repre- 
sentative on  the  board  of  inspectors  in  every  beat  in  the  district  and  he  did  not  solicit  any 
changes  through  me  or  to  my  knowledge. 

This  witness  was  introduced  by  the  contestant  himself,  and  his  cred- 
ibility thereby  vouched  for  by  the  contestant.  Does  his  testimony 
warl-ant  the  conclusion  of  the  majority  that  the  change  was  made  at 
the  instance  of  the  contestee  and  "  for  a  dishonest  purpose  f  We 
think  not.  He  testifies  directly  that  the  change  was  made  for  the 
sole  reason  that  he  was  informed  that  those  ai)pointed  declined  to  serve, 
and  that  the  contestee  had  nothing  whatever  to  do  with  his  action,  but 
on  the  contrary  expressed  himself  as  perfectly  satisfied  with  the  first 


m'duffie  vs.  turpin.  305 

appointees,  and  expressed  a  desire  that  they  would  serve.  The  majority 
of  the  committee  must  have  misread  the  testimony  of  Judge  Coffey 
to  arrive  at  the  position  set  forth  in  their  report,  or  else  they  discredit 
his  testimony,  though  he  holds  the  high  and  honorable  ijosition  of  judge 
of  probate  of  Lowndes  County  and  his  truthfulness  is  avouched  by  the 
contestant  himself. 

The  report  further  declares,  inferentially  at  least,  that  while  the  first 
appointments  were  satisfactory  to  the  contestant  the  second-  appoint- 
ments were  not,  when  in  answer  to  the  following  question  on  cross-ex- 
amination : 

Did  not  J.  V.  McDaffie  express  himself  as  being  well  satisfied  with  the  persons  ap- 
pointed to  hold  the  Congressional  election  in  1888  ? 

Judge  Ck)ffey  replied,  "  He  did,"  and  in  the  lengthy  deposition  of  the 
contestant  we  fail  to  find  any  denial  of  this  expression  of  satisfaction 
upon  his  part  with  the  second  appointments.  We  must  infer,  there- 
fore, that  he  was  satisfied  before  the  election  with  the  character  of  the 
second  appointees,  and  believed  them  to  be  competent  and  honest  men. 

The  majority  of  the  committee  insist  that  the  Republican  inspectors 
last  appointed  were  ignorant  men,  while  those  first  named  were  intelli- 
gent. Let  us  see  what  the  contestant's  witness,  Judge  Coffey,  says  on 
this  point  in  answer  to  a  question  propounded  by  the  contestant's  coun- 
sel (Record,  page  746) : 

Q.  How  did  those  inspectors  of  the  Republican  party  who  were  appointed  at  the 
first  meeting  of  the  board  and  were  taken  off  and  rejected  by  the  board  at  the  last 
meeting  compare  with  those  who  were  appointed  in  their  place  to  act  as  inspectors 
in  point  of  education,  intelligence,  and  qualifications  to  act  as  such  inspectors?  Please 
state  fully,  so  far  as  you  know. — A.  1  do  not  think  that  there  was  any  gieat  differ- 
ence in  the  intelligence  and  qualifications  of  the  original  Republican  inspectors  aud 
those  who  were  appointed  to  fill  their  places,  except  in  Hayneville  beat,  that  I  am 
acquainted  with. 

There  is  not  a  particle  of  testimony  to  affect  in  the  remotest  degree 
the  bona  fides  of  Judge  Coffee  or  to  throw  the  slightest  suspicion  upon 
his  action.  In  fact,  learning  as  he  did  that  the  Republicans  originally 
appointed  declined  to  serve,  it  was  his  duty,  in  the  interest  of  a  fair 
election  and  in  compliance  with  the  law,  to  make  such  changes  as  would 
insure  Republican  representation  at  the  ballot-boxes,  and  if  he  had  not 
acted  upon  the  information  and  thereby  the  Republicans  were  deprived 
of  an  inspector  at  the  respective  precincts,  the  contestant  might  have 
complained  that  his  failure  to  act  was  caused  by  a  "  dishonest  purpose'^ 
upon  his  part. 

But  without  dwelling  longer  upon  this  point  let  us  examine  the  testi- 
mony as  to  each  precinct  in  this  county. 
Following  the  order  of  the  majority  report  we  will  first  consider — 
Gordonsville precinct. — As  to  this  precint  there  is  no  testimony  what- 
rer  even  tending  to  impeach  the  fairness  of  the  election  and  the  cor- 
Jtness  of  the  returns  except  that  which  was  taken  in  the  time  for  re- 
^ttal ;  then  the  contestant  introduced  witnesses  and  examined  them 
chief. 

It  is  unnecessary  to  call  attention  to  the  statute  governing  contested- 
lection  cases.    Under  it  and  in  accordance  with  the  findings  of  the  pres- 
it  Committee  on  Elections  in  the  case  of  Posey  vs.  Parrett,  all  this 
ridence  must  be  excluded,  leaving  the  precinct  unassailed.    It  cer- 
linly  would  be  gross  injustice  to  admit  the  depositions  of  these  wit- 
nesses when  the  contestee  had  no  opportunity  to  meet  aud  contradict 
their  testimony. 
But  while  adhering  to  this  position,  and  believing  the  House  will  not 
H.  Mis.  137 20 


306  m'duffie  vs.  turpik 

ijinore  the  law  and  depart  from  the  long  line  of  precedents  furnished  by 
tlie  record  ot  contested-election  cases  in  fornnT  Con <>i esses,  and  by  the 
very  recent  case  of  Fosey  vs.  Parrctt  in  tbis  Uouse,  we  insist  that  there 
is  nothing  in  the  testimony  of  any  of  the  witnesses  which  is  material, 
except  the  statement  ot  the  Republican  Federal  supervisor  that  at  one 
time  durinn  the  day  the  ballot  box  was  removed  from  the  polling-room 
into  an  adjoining  room  by  one  ot  the  Democratic  inspectors.  This  fact 
was  introduced  to  cast  suspicion  ui)on  the  i)urpose  for  which  the  box 
was  placed  in  the  room:  but  this  is  all  dispelled  by  the  testim<my  not 
only  of  one  of  the  Democratic  insjx'ctors,  but  by  the  Kepublicau  iu- 
si)e{;tor  as  well,  and  the  purpose  fully  and  satisfactorily  explained. 

The  Democratic  inspectors  went  to  dinner  together,  and  before  leaving 
one  of  them  took  the  box,  without  objection  upon  the  part  ot  the  Repub- 
lican inspector  or  Republican  Federal  sui)ervisor,  and  set  it  just  inside 
the  door  of  an  adjoining  unoccupied  room,  without  even  entering  the 
room,  leaving  the  Republican  inspector  and  Republican  supervisor  to 
keep  guard,  and  the  Republican  inspector  swears  no  one  entered  that 
ropm  while  the  box  was  in  it.     (Record,  518,  522.) 

The  majority  in  their  report  say  on  page  18: 

The  material  evidence  in  regard  to  this  precmct  is  found  on  pages  728,  733, 735,  and 
744  of  the  record. 

That  is,  they  consider  only  as  "  material "  the  evidence  taken  by 
the  contestant,  and  that,  too,  taken  in  the  last  ten  days,  with  no  op- 
portunity to  thecontestee  to  refute  it,  and  utterly  ignore  as  at  all  ''ma- 
terial" the  direct  evidence  of  one  of  the  Democratic  inspectors  and  the 
Eepublican  inspector,  witnesses  on  behalf  of  the  contestee. 

Sandff  Ridge  precinct. — The  facts  in  regard  to  this  precinct  can  be 
briefly  stated. 

The  law  of  A.labama  requires  the  polls  to  be  opened  before  9  o'clock 
ill  the  morning.  If  all  of  the  insjiectors  are  not  present,  vacancies  shall 
be  filled  by  those  present  from  the  qualified  voters  in  attendance.  When 
the  time  for  opening  the  polls  on  the  morning  of  the  election  in  contro- 
versy arrived,  only  one  of  the  inspectors  was  present  and  he  ajipoiuted 
two  other  inspectors  who  were  qualified  voters,  one  a  Republican  and 
the  other  of  unknown  politics,  and  the  three  proceeded  to  conduct  the 
election. 

Sometime  after  this  poll  was  opened  a  colored  man  associated  two 
other  colored  men  with  him,  and  without  a  shadow  of  authority  opened 
another  polling  place  and  received  votes. 

There  is  no  attack  made  on  the  manner  of  conducting  the  regular 
poll  or  the  correctness  of  the  returns  of  the  election  officers,  but  on  the 
contrary  the  witnesses  introduced  by  the  contestee  prove  that  the  elec- 
tion was  fair  and  that  the  returns  were  honest. 

The  majority  count  the  votes  cast  at  this  outside,  irregular,  and  un- 
authorized poll.  They  question  and  discard  returns  from  regular  poll- 
ing places  because  the  officers  were  all  Democrats,  but  in  this  instance 
they  count  the  returns  from  an  irregular  and  unauthorized  polling  place 
made  by  men,  all  of  whom  were  Republicans,  unsworn,  ignorant,  and 
unlettered. 

Lowndtshorough  precinct. — This  precinct  is  attacked  by  one  witness, 
G.  T.  McCall,  who  was  a  Republican  ticket  holder,  and  here  is  a  sum- 
mary of  the  material  points  in  his  testimony  (Record,  747)  : 

Q.  You  .say  that  you  were  engaged  in  issuing  tickets  there  at  that  election  that 
day ;  state  about  how  many  you  issued. — A.  Myself  and  some  four  or  five  others 
issued,  I  suppose,  about  350  or  360  tickets. 

(Contestee  moves  to  strike  this  answer  from  the  file  on  the  ground  that  it  is  a  mere 
Bupposition  of  the  witness.) 


m'duffie  vs.  turpin.  307 

Q.  Were  you  about  or  near  the  polls  during  the  time  of  voting  ?  State  whether 
or  not  these  tickets  and  othem  you  were  issuing  was  voted  or  handed  in  to  the 
inspector. — A.  I  was  near  the  polls  all  day.  Right  on  the  grounds.  I  seen  a  great 
part  of  them  handed  in ;  I  didn't  see  them  all. 

'  Cross-examinatiou  (Record,  748) : 

Q.  You  stated  in  your  direct  examination  that  you  and  severkl  others  issued  about 
350  or  360  Republican  tickets  on  the  day  of  the  election ;  how  many  of  these  did  you 
issue  yourself? — A.  I  suppose  I  issued  one-third  of  them. 

Q.  Do  you  know  as  a  fact  how  many  you  actually  issued  ?  I  do  not  ask  for  your 
supposition,  but  for  what  you  actually  know  ? — A.  At  one  time  I  issued  one-third  of 
a  hundred  and  tifty,  and  at  another  time  I  issued  some  more,  and  don't  know  as  a  fact 
how  many  I  issued. 

Q.  How  many  of  the  voters  to  whom  you  gave  Republican  tickets  actually  voted 
the  ticket  you  gave  them,  if  you  know  how  many  ? — A.  I  give  tickets  to  about  seventy- 
five  or  one*  hundred,  probably  more,  and  I  would  say  definitely  that  all  of  them  voted 
them. 

Upon  this  testimony  the  majority  proceed  to  set  aside  the  returns 
which  gave  Turi>in  320,  McDuffie  41,  and  reversing  the  figures  give 
Turpin  41  and  McDuffie  320,  and  while  such  action  is  startling  when 
considered  in  the  light  of  the  testimony  of  the  one  solitary  witness 
whose  statements  we  have  quoted,  yet  when  we  look  at  the  evidence 
on  behalf  of  the  contestee,  which  we  will  now  give,  it  is  no  less  than 
astounding.     (Record,  536.     W.  H.  Merrett.) 

Q.  What  is  your  uame,  your  age,  and  where  do  you  reside,  and  how  lonji:  have  you 
resided  f — A.  William  H.  Merrett  is  my  name ;  my  age  is  thirty-four  years ;  I  re- 
side in  Lownuesboro  beat,  No.  18,  Lowndes  County,  Ala. ;  have  resided  there  ten 
years. 

Q.  Did  you  attend  au  election  held  for  your  beat  at  Lowndesboro  on  the  6th  day 
of  November,  1888,  to  elect  a  Congressman  to  represent  this  district  in  the  Fifty- 
first  Congress ;  and,  if  so,  in  what  capacity  did  you  attend? — A.  I  did  attend  said 
election,  and  in  the  capacity  of  register. 

Q.  On  the  morning  of  said  election  did  you,  or  any  one  else  in  your  hearing,  try  to 
induce  G.  T.  McCall  to  go  into  the  room  where  the  election  was  to  be  held  and  person- 
ally supervise  said  election  as  United  States  supervisor  ?  If  so,  state  all  was  said. — 
A.  I,  in  company  with  one  of  the  inspectors,  A.  Douglass,  saw  G.  T.  McCall  on  the 
grounds  and  each  of  us  made  personal  endeavors  to  induce  him  to  go  in  and  act  in 
the  capacity  of  United  States  supervisor,  ho  being  appointed  in  said  capacity,  I  tell- 
ing him  at  the  time  I  wanted  to  see  a  fair  election  and  a  fair  count,  aud  wanted  it 
said  that  Lowndesboro  beat  sent  off  her  vote  as  cast  by  the  voters,  and  that  he  well 
knew  that  Lowndesboro  beat  was  largely  Democratic,  and  that  it  was  important  to 
the  Democratic  party  for  him  to  act.  Mr.  Douglass,  one  of  the  inspectors,  said  to 
him  in  my  presence,  did  all  he  could  to  get  the  said  McCall  to  act  as  United  States 
supervisor.  McCall  positively  refused  to  have  anything  to  do  in  the  capacity  he  was 
appointed  for.  We  made  strenuous  efforts  on  several  other  Republicans  to  get  them 
to  act,  and  was  not  able  to  get  any  other  Republican  than  the  one  that  served. 

Q.  Were  you  present  during  the  entire  day  at  the  voting  place  ? — A.  Most  of  the 
time  during  voting  hours  I  was  within  ten  feet  of  where  the  vote  was  handed  in  to 
the  inspectors. 

Q.  Do  you  know  whether  or  not  a  large  number  of  colored  voters  voted  the  Demo- 
cratic ticket  there  that  day  ? — A.  I  personally  gave  them  Democratic  tickets,  and, 
being  in  close  proximity  to  where  they  passed  them  to  the  inspectors,  know  a  large 
number  voted  the  Democratic  ticket. 

Q.  Was  J.  V.  McDuffie  a  popular  or  unpopular  candidate  for  Congress  among  the 
colored  voters  of  your  beat  at  said  election  ? — A.  By  leaders,  who  controlled  the 
masses  of  the  Republican  party,  I  consider  McDuffie  unpopular  and  not  their  choice 
for  Congress.  I  have  heard  the  leaders  of  said  party  say  as  much,  and  that  he  was 
too  close-fisted  and  thej-^  were  tired  of  working  for  him  for  nothing. 

Q.  Was  L.  W.  Turpin  a  popular  or  unpopular  candidate  for  Congress  among  the 
Democrats  of  your  beat? — A.  Very  popular. 

Q.  Do  you  know  the  general  character  of  A.  Douglass  and  S.  A.  Tyson  in  the  com- 
munity in  which  they  live,  and  how  long  have  you  known  them,  and  did  they  act  as 
inspectors  at  said  election  ? 

(Contestant  objects  to  this  question  on  the  ground  that  there  is  no  predicate  been 
laid  to  authorizing  into  examining  of  the  characters  of  these  gentlemen;  that  their 
character  is  not  in  issue  in  this  contest ;  that  they  are  not  witnesses  for  either  party, 


308  m'duffie  vs.  tuepin. 

and  are  uot  parties  to  the  contest,  and  that  their  character  for  truth  and  veracity,  or 
any  other  respect,  has  been  attacked  or  put  in  issue.) 

A.  I  do  know  the  character  of  the  above  gentlemen  mentioned,  and  bave  known 
them  ten  years,  and  they  did  act  as  inspectors  to  said  election. 

Q.  What  is  the  general  character  of  said  Douglass  and  Tyson,  and  to  what  class  of 
citizens  do  they  belong  ? — A.  Their  character  is  good,  and  equal  to  the  best  ip  our 
community,  and  are  of  the  first  and  best  families  in  the  beat. 

Q.  Do  you  know  the  character  of  G.  T.  McCall  in  the  community  in  which  he  lives ; 
if  you  do,  is  that  character  good  or  bad  for  truth  and  veracity  ? — A.  I  do  know 
his  character;  and  while  he  is  a  smart  and  shrewd  man  in  rascality,  I  consider  his 
moral  character  bad,  and  where  he  is  interested  in  the  least  I  would  not  believe  him 
on  his  oath. 

Q.  Did  you  see  anything  there  that  day  that  indicated  anything  other  than  a  free 
ballot  and  a  fair  count  ? — A.  I  did  not. 

Q.  Judging  from  the  votes  cast  at  your  precinct  for  several  elections  past,  either 
State  or  Federal,  is  your  beat  Democratic  or  Republican  ? — A.  Democratic,  by  a  large 
majority. 

Cross-examination  by  W.  C.  Gripfen",  attorney  for  contesant : 
Q.  You  say  according  to  the  votes  cast  therefor  the  last  several  years  past,  you  say 
that  your  beac  is  largely  Democratic  ;  can  you  say  of  your  own  knowledge  that  a  ma- 
jority of  the  votes  cast  at  those  elections  were  Democratic  ? — A.  I  can  say  there  were 
Democratic,  having  repeatedly  acted  as  inspector  both  in  State  and  Federal  dectioiis. 
Q.  You  say  that  you  and  Mr.  Archie  Douglass  used  your  influence  with  G.  T.  Mc- 
Call on  the  day  of  the  election  on  the  6th  of  November  last,  to  act  as  United  States 
supervisor  at  that  election ;  do  you  know  of  your  own  knowledge  that  said  McCall 
had  been  appointed  or  had  any  legal  authority  to  act  as  Uuited  States  supervisor  of 
said  election? — A.  I  saw  his  commission  the  day  previous  to  the  election. 

Q.  Who  acted  as  inspectors  at  that  election  and  who  as  clerks,  and  give  the  race 
and  politics  of  each  of  them  ? — A.  A.  Douglass,  S.  A.  Tyson,  and  Ben  Gary,  inspect- 
ors; first  two  Democratic,  last  onts  Republican.     I  don't  know  who  acted  as  clerks. 
,  Q.  Can  Ben  Gary  read  and  write  ?— A.  I  don't  know. 

(Kecord  538.      Hou.  A.  E.  Coffee:) 

Q.  What  is  your  name,  your  age,  and  where  do  you  reside,  and  how  long  have  you 
resided  in  this  county? — A.  My  name  is  A.  E.  Coffee;  judge  of  probate  court  of 
Lowndes  County  ;  I  am  forty  years  old  ;  I  reside  in  Lowndes  County,  Ala. ;  I  have 
resided  in  the  county  about  twenty-five  years. 

Q.  Please  tell  what  you  know  about  the  election  that  was  held  on  the  6th  day  of 
November,  1888,  at  Lowndesboi-o  precinct,  held  lor  the  purpose  of  electing  a  Congress- 
man to  represent  this  district  in  the  Fifty-first  Congress,  and  Presidential  election  ? — 
A.  I  voted  at  Lowndesboro  precinct  on  the  6th  day  of  November,  1888,  and  was  about 
or  near  the  polls  from  12  o'clock,  noon,  until  5  o'clock  p.  m.  I  8aw  a  great  many 
colored  voters  cast  their  ballots  for  li.  W.  Turpin,  including  the  leading  and  most 
intelligeut  colored  men  of  the  beat.  The  colored  men  of  Lowndesboro  beat  have 
affiliated  with  the  Democratic  party  ever  since  1862.  I  knew  the  colored  men  voted 
the  Democratic  ticket,  because  they  showed  me  their  tickets,  and  I  saw  them  deposited 
in  the  ballot-box. 

Q.  Have  you  not  an  extensive  acquaintance  and  knowledge  of  the  colored  voters  of 
this  county  as  regards  to  their  preference  for  voting  ?  If  so, state  whether  or  not  they 
vote  solidly  for  one  party. — A.  I  have  considerable  knowledge  of  the  political  predi- 
lection of  the  colored  men  of  Lowndes  County ;  they  have  never  been  solidly  Repub- 
lican since  1882;  they  have  been  divided  on  all  opposing  candidates  in  the  county 
since  1882;  in  1886  they  voted  almost  solidly  for  the  regular  De:i  ocratic  nominees 
against  their  opponents 

Q.  It  seems  there  were  two  boxes  from  each  of  the  following  beats,  to  wit :  Farmer- 
ville,  Sandy  Ridge,  Hayneville,  Letohatchee,  and  St.  Clair.  Upon  what  grounds  did 
the  board  of  supervisors  refuse  to  open  and  count  the  box  from  each  of  these  beats 
sent  up  by  the  Republican  inspectors  alone? — A.  On  the  grounds  that  the  returns  of 
an  election  held  by  the  regularly  appointed  inspectors  were  before  the  county  board 
of  supervisors,  and  under  the  law  they  counted  the  returns  of  the  regularly  qualified 
inspectors  and  refused  to  count  any  other. 

Q.  Do  you  know  the  general  character  and  standing  of  the  Democratic  inspectors 
that  held  said  election  in  each  beat  in  this  county  ?  If  so,  state  what  it  is. — A.  I  do ; 
almost  without  exception  they  are  of  the  best  men  in  the  county  in  point  of  integ- 
rity, and  all  those  qualities  tbiit  go  to  make  a  good  citizen. 

Q.  Do  you  know  anything  further  that  would  be  of  benefit  to  the  contestee  in  this 
contest? — A.  I  know  that  since  1882  the  colored  people  of  the  county  have  manifested 
very  little  interest  in  the  Republican  aspirants  for  office,  as  evidenced  by  their  vot- 


m'duffie  vs.  turpin.  309 

ing  the  Democratic  ticket  openly,  and  the  small  tarn-out  compared  to  the  old  days 
when  the  carpet-bagger  was  lord  of  the  land,  and  before  the  colored  man  had  found 
out  his  selfishness  and  deceit. 

(Record  539.    Dr.  Shirley  Bragg:) 

Q.  What  is  your  name,  your  age,  where  do  you  reside,  and  how  long  have  yon  re- 
sided there? — A.  My  name  is  Shirley  Bragg  ;  my  age  is  thirty-five  years  ;  I  reside  in 
Lowudesboro  ;  I  have  resided  in  the  county  nearly  all  of  my  life. 

Q.  What  office  do  you  hold  in  this  county  ? — A,  Health  officer  and  inspector  of  con- 
victs. 

Q.  State  all  you  know  in  regard  to  the  election  held  at  Lowudesboro  precinct  on  the 
6th  day  of  November,  188d,  for  the  purpose  of  electing  aCongressmau  to  represent  this 
district  in  the  Fifty  first  Congressof  the  United  States. — A.  I  was  present  and  was  on 
the  ground  the  whole  day.  We  had  a  fair  turn-out  there,  but  have  seen  larger  crowds 
at  the  polls.  I  saw  some  of  colored  voters  vote  for  McDuffie  and  saw  some  of  them 
vote  for  the  regular  Democratic  ticket.  My  impression  is  that  Scott  Smith  worked 
for  the  Democratic  ticket  and  voted  the  Democratic  ticket;  he  is  a  colored  man. 

Q.  About  what  portion  of  the  colored  voters  did  you  see  vote  for  McDuffie,  and 
about  what  portion  «lid  you  see  vote  for  L.  W.  Turpin  f — A.  I  saw  about  as  many 
vote  tor  L.  W.  Turpin  as  voted  for  McDuffie,  ^s  the  best  of  my  belief. 

Q.  Did  the  colored  people  of  your  beat  take  much  interest  in  said  election  or  not  ? — 
A.  Seemed  to  be  very  little  interest  in  the  election  and  there  was  no  enthusiasm  at 
aM. 

Q.  Was  J.  V.  McDuffie  a  popular  or  unpopular  candidate  among  the  colored  voters 
'  f  your  beat  at  said  election  f — A.  I  don'i  think  the  rank  and  file  of  the  colored  peo- 
ple cared  much  for  either  one  of  them. 

Cross-examination  by  W.  C.  Griffex,  attorney  for  contestant : 
Q.  You  say  in  your  direct  examination  that  you  saw  some  of  the  colored  voters  vote 
for  McDuffie  and  that  you  saw  some  vote  the  regular  Democratic  ticket ;  please  state 
how  n)auy  you  know  voted  the  regular  Democratic  ticket,  and  give  their  names  who 
so  vot«<l. — A.  I  can't  say  how  many,  but  know  that  some  of  them  voted  for  Turpin 
by  there  being  a  red  ticket  on  the  ground  and  knew  who  was  on  the  red  ticket ;  it 
was  the  Democratic  ticket  sent  to  me  the  night  before  the  election  by  the  chairman 
of  the  district  committee,  and  would  have  been  all  over  the  conuty,  but  was  received 
too  late  for  distribution. 

Q.  What  proportion  of  the  time  that  the  polls  were  open  there  that  day  at  that 
electiou  were  you  present  at  the  polls? — A.  I  was  there  from  the  time  they  opened 
until  they  closed,  with  the  exception  of  about  a  half  an  hour,  when  I  went  to  dinner. 
Q.  You  say  in  your  direct  examination  that  there  was  a  fair  turn-out  there  that 
day,  but  that  the  voters  seemed  to  take  very  little  interest  in  the  election ;  you  know 
whether  or  not  they  all  voted  ? — A,  I  do  not  know,  but  know  there  was  les»  entha- 
siasm  there  at  that  election  than  I  ever  saw  in  Lowndes  County. 

These  witnesses — men  of  high  character — testify  that  many  colored 
men  voted  the  Democratic  ticket ;  that  the  officers  who  conducted  the 
election  were  men  of  the  strictest  integrity ;  that  McCall,  the  contest- 
ant's witness,  refused  to  serve  as  supervisor  though  appointed  for  that 
purpose,  and  that  he  is  a  smart  and  shre\yd  rascal  and  not  worthy  of  be- 
lief on  oath. 

Steep  Creek  precinct. — We  find  that  the  majority  of  the  committee 
rely  upon  the  oft  told  story  that  a  certain  number  of  Republican  tickets 
were  issued,  therefore  a  corresponding  number  of  votes  were  cast  for 
McDuffie  and  must  be  counted  for  him. 

One  of  the  witnesses  upon  whose  testimony  the  contestant  mainly 
relies  was  so  drunk  that  before  the  cross-examination  was  concluded  it 
was  found  necessary  to  suspend  until  the  next  day  so  that  he  might 

I  sober  up.  (Record  697.) 
The  testimony  of  this  witness  is  specially  mentioned  and  approved 
by  the  report  of  the  majority. 
It  is  shown  by  the  contestant's  witness,  W.  N.  Wimo,  that  the  Demo- 
cratic officers  at  this  precinct  were  men  "  whose  characters  are  as  good 
as  any  in  the  State  of  Alabama  j  that  they  are  among  the  best  citizens." 
(Eecord672.) 


310  m'duffie  vs.  turptn. 

Eetura  vote:  Turpin  146,  McDuffie,  62. 

Counted  by  majority  of  committee :    Turpin  37,  McDuffie  171. 

Church  Hill  precinct. — The  election  at  this  precinct  was  conducted  by 
two  Democrats  and  one  Republican.  Again  comes  the  usual  cry  that 
a  given  number  of  Republican  tickets  were  distributed  and  they  were 
necessarily  cast,  and  one  witness  is  relied  upon  to  prove  this  predicate 
of  the  report  of  the  majority. 

On  behalf  of  the  contestee  the  testimony  of  two  witnesses  was  taken 
and  we  here  quote  it.    (Record,  501-503,  H,  B.  Lever.) 

Q.  What  is  your  name,  age,  and  in  what  precinct,  county,  and  district  do  you 
reside  T — A.  H.  B.  Lever ;  forty-eight  years  of  age,  and  live  in  Church  Hill  beat,  in 
Lowndes  County,  fourth  district  of  Alabama. 

Q.  Was  there  an  election  held  in  said  county  in  said  precinct  on  the  6th  day  of 
November,  1^88,  for  the  purpose  of  electing  a  member  of  the  Fifty-first  Congress  of 
the  United  States  of  America  from  the  Fourth  Congressional  district  of  Alabama  ;  and, 
if  80,  who  was  the  Republican  candidate,  and  who  was  the  Democrat  for  said  office  t 
Were  you  an  officer  of  said  election  ^  and,  if  yea,  state  whether  you  were  an  in- 
spector or  not,  and  give  the  names  of  the  other  inspectors. — A.  There  was  an  election 
held  in  said  precinct  on  said  day  for  said  office;  J.  V.  McDuffie  was  the  Republican 
candidate,  and  L.  W.  Turpin  was  the  Democratic ;  I  was  an  officer  in  said  election  ; 
Joe  R.  Dudiy  and  Captain  Black  were  inspectors. 

Q.  Were  all  the  inspectors  in  said  election  Democrats,  and  warm  friends  and  ardent 
supporters  of  L.  W.  Turpin? — A.  No.  Two  were  Democrats  and  one  was  a  Repub- 
lican. 

Q.  Were  the  Democratic  inspectors  in  said  election  partisans  of  L.  W.  Turpin  in 
any  other  sense  than  that  of  being  members  of  the  same  political  party!  Did  you 
and  the  other  Democratic  inspectors,  acting  in  concert  with  the  white  voters  of  said 
precinct,  enter  into  and  form  a  conspiracy  with  Democratic  inspectors  and  voters 
throughout  the  Fourth  Congressional  district  for  the  purpose  of  electing  L.  W.  Turpin 
regardless  of  hovv  the  votes  were  cast?  How  did  the  Republican  inspector  of  said 
election  compare  with  point  of  intelligence  and  honesty  with  other  Republicans  of 
said  precinct? — A.  No;  they  were  not  partisans  of  L.  W.  Tnrpin,  except  that  they 
belong  to  the  same  party.  No;  they  did  not  enter  into  or  know  of  any  conspiracy. 
The  Republican  inspector  compares  favorably  with  the  other  Republicans  of  said  beat. 

Q.  Who  received  the  ballot  from  the  electors,  and  who  deposited  in  the  ballot-box  ? 
Was  the  ballot  so  deposited  in  the  ballot-box  the  identical  ballot  so  handed  in  by 
the  electors  ?  Could  such  ballot  have  been  changed  either  by  the  inspector  receiving 
it  or  by  the  one  depositing  it  without  your  knowledge  ?  Was  it  so  changed  ? — A. 
J.  R.  Dudiy  received  the  ballots  and  handed  it  in  to  Captain  Black,  who  put  them  in 
the  ballot-box.  Mr.  Dudiy  or  Captain  Black  could  not  have  changed  the  ballot  with- 
out my  knowing  it.  They  were  not  changed,  and  were  the  identical  ballots  cast  by 
the  electors. 

Q.  Was  the  box  in  which  the  ballots  were  deposited  kept  looked  during  the  day  ; 
and  if  so,  who  had  the  key;  did  not  the  Republicam  inspector  before  any  votes  was 
deposited  iu  the  box  carefully  examine  and  lock  it ;  was  any  box  filled  with  tickets 
during  the  time  the  polls  were  open  or  after  the  close  thereof  substituted  for  the  regu- 
lar ballot-box  ? — A.  The  box  was  keptlockeii,  and  Captain  Black,  the  Republican  in- 
spector, had  the  key.  He  examined  the  box ;  locked  it ;  put  the  key  in  his  pocket 
until  he  opened  the  box  to  count.     There  was  no  box  only  the  regular  one. 

Q.  Were  there  any  ballots  other  than  those  voted  by  the  electors  of  said  precinct 
put  into  the  ballot-box  ? — A.  There  was  none. 

Q.  Was  the  ballot-box  from  which  the  iuspectoi-a  took  the  ballots  for  the  purpose 
of  counting  them  the  identical  box  in  which  ballots  voted  ,by  the  electors  had  been 
deposited  by  the  inspectors? — A.  It  was  the  identical  box. 

Q.  Were  the  ballots  counted  by  the  inspectors  the  identical  ballots  that  were  cast 
by  the  electors  ? — A.  They  were.  . 

Q.  Did  the  inspectors  in  making  such  count  read  tickets  having  on  them  the  name 
of  John  V.  McDuffie  as  if  they  were  the  name  L.  W.  Turpin  ? — A.  No,  they  did  not. 

Q.  Was  the  count  made  by  the  inspectors  a  fair,  just,  and  honest  one  ? — A.  It  was 
a  fair  count,  just  and  honest  one. 

Q.  Was  the  returns  made  out  by  the  inspectors  and  forwarded  to  the  sheriff  correct 
and  accurate  ? — A.  It  was  correct. 

Q.  Is  this  a  true  copy  of  the  returns  made  out  by  the  inspectors,  and  does  it  contain 
a  correct  statement  of  the  vote  of  said  precinct  ? 

(The  paper  is  now  handed  the  witness,  and  the  contestee  asks  that  it  be  attached 
to  his  testimony,  which  is  accordingly  done  and  marked  £xhibit  B.') 

A.  It  is  a  true  and  honest  copy. 


m'dUFFIE   vs.    TIJRPIN.  311 

Here  follows  a  copy  of  the  returns,  giving  Turpin  117  votes  and 
McDuffie  63  votes. 

Q.  How  many  ballots  were  cast  at  said  election  for  John  V.  McDuffie  and  how  many 
for  L.  W.  Turpiu  ?— A.  McDuffie  received  63  votes  and  L.  W.  Turpiu  117. 

Q.  Could  the  ballot-box  or  ballots  in  it  have  been  changed  from  the  time  of  the 
opening  of  the  polls  to  the  close  thereof  without  your  knowledge  ? — A.  It  could  not 
have  been  changed  without  my  knowledge. 

Q.  Were  they  or  either  of  them  changed  between  the  opening  of  the  polls  and  the 
count  by  the  inspectors  ? — A.  They  were  not  changed. 

(Eecord,  505.    George  Ernest:) 

Q.  What  is  your  name,  age,  and  what  precinct,  county,  and  Congressional  district 
do  you  reside  ? — A.  George  W.  Ernest ;  twenty-six  years  of  age ;  Church  Hill  pre- 
cinct; Lowndes  Connty  ;  fourth  district  of  Alabama. 

Q.  Did  you  so  reside  ou  the  Cth  day  of  November,  1888  ?  If  so,  was  thei:e  an  elec- 
tion hold  in  said  beat  ior  a  member  of  Congress  from  the  fourth  Congressional  district 
of  Alabama  to  the  Fifty-first  Congress  of  the  United  States  of  America? — A.  I  did 
reside  on  the  6th  day  of  November,  1888,  when  said  election  was  held  for  said  office 
on  said  day. 

Q.  What  official  connection,  if  any,  did  you  have  with  said  election  ? — A.  I  was 
appointed  and  acted  as  deputy  sheriff. 

Q.  Were  you  in  the  room  while  the  canvass  of  the  polls  was  being  made  by  the  in- 
spectors ? — A.  I  was  in  the  room  at  the  time. 

Q.  Did  you  see  the  inspectors  making  the  count ;  and  did  yon  read  the  names  on 
the  tickets?  And,  if  so,  do  you  know  of  any  ballots  that  had  the  name  of  John  V. 
McDuffie  on  them  being  read  and  counted  as  if  they  bore  the  name  of  L.  W.  Turpin? — 
A.  I  saw  the  counting  of  the  inspeotors ;  I  read  the  tickets,  and  do  not  know  of  any 
that  contain  the  name  of  J.  V.  McDuffie  being  read  and  counted  for  L.  W.  Turpin. 

Q.  Do  yon  know  Mr.  H.  B.  Lever  and  Joseph  R.  Dudley;  and  if  so,  how  long  have 
you  known  them? — A.  I  know  both;  have  known  them  for  the  last  fifteen  years. 

Q.  Do  you  know  their  general  character  for  truth  and  honesty  in  community  in 
which  they  reside,  and  among  the  people  with  whom  they  associate  ? — A.  I  do. 

Q.  Is  not  their  general  character  very  good  ? — A.  It  is. 

Q.  Do  they  not  belong  to,  associate,  and  mingle  with  the  best  classes  of  Lowndes 
County?— A.  They  do. 

Q.  Was  there  not  a  good  deal  of  discontent  among  the  Republicans  of  Lowndes 
County  on  account  of  the  nomination  of  J.  V.  McDuffie? — A.  There  was  a  good  deal 
among  the  negroes. 

Q.  Did  he  receive  the  cordial  and  united  support  of  the  rank  and  file  of  his  party  ? 
— A.  He  did  not. 

*4.  Did  not  this  contest  arise  from  the  fact  that  McDuffie  supported  in  1886,  in  the 
county  election,  what  is  known  as  the  regular  Democracy,  instead  of  that  wing  of 
the  Democratic  party  commonly  called  in  Lowndes  County  Mugwumps? — A.  It  did. 

If  this  is  the  testimony  of  witnesses  who  are  credible,  upon  what 
ground  can  it  be  held  that  the  returned  vote  of  117  for  Turpin  and  63 
for  McDufiBe  should  be  set  aside  and  13  given  to  Turpin  and  166  to  Mc- 
DuflBe  ? 

Haynesville  precinct. — At  this  precinct  an  election  was  regularly  held 
at  the  court-house,  the  usual  place  for  holding  elections.  It  was  con- 
ducted by  two  of  the  regularly  appointed  inspectors  and  by  a  third 
selected,  in  accordance  with  the  law,  to  supply  the  place  of  the  third 
appointee,  who  did  not  attend ;  two  were  Democrats  and  one  was  a 
Republican. 

The  poll  was  oi)ened  before  9  o'clock,  as  required  by  the  statute. 

A  colored  Republican,  who  claimed  to  be  an  inspector  by  reason  of 
an  appointment  xVhich  had  been  revoked  more  than  tbirty  days  before 
the  election,  ut»on  his  own  motion  assiiriated  with  bim  two  other  col- 
ored Republicans  and  opened  auotber  poll  some  distance  from  the 
c6urt-house,  and  received  the  ballots  of  all  those  who  presented  them- 
selves. 

The  only  attack  made  on  the  returns  from  the  regular  polling  pi  ice 
is  that  made  by  the  leader  in  the  outside  movement  ( VV.  E.  Oarson), 
who  says  that  the  Qolored  Republican  inspector  (Tony  Smith)  at  the 


312  m'duffie  vs.  turpin. 

regular  polling  place  was  a  man  "  whose  character  for  sobriety  was 
bad,  and  that  he  was  nearly  all  the  time  drunk  ;"  to  this  Smith  replies 
that  Carson  "  is  a  tramp  and  beats  people  out  of  everything  he  can." 

At  the  regular  precinct  the  Democrats  voted  but  the  Republicans  de- 
clined ;  the  returns  were  158  for  Turpin  and  none  for  McDuffie ;  but 
the  majority  of  the  committee  held  that  Turpin  only  received  54  votes, 
while  McDuffie  received  272  votes.  They  count  every  vote  which  was 
cast  for  McDuffie  at  this  outside  place,  and  give  Turpin  only  54  votes 
of  the  158  which  he  received  at  the  regular  polling  place. 

The  Democratic  inspectors  were  men  whose  characters  are  shown  to 
have  been  above  reproach. 

In  order  that  it  may  be  fully  understood  why  outside  polls  were 
opened,  and  further  to  show  the  bulldozing  tactics  of  the  contestants, 
we  here'  give  a  part  of  the  testimony  of  W.  E.  Haynes : 

Q.  State  what  W.  E.  Carson  said  to  you,  if  anything,  about  being  bulldozed  and 
forced  to  sign  the  returns  of  the  pretended  election  held  at  Hayneville  on  the  6th  day 
of  November,  1888. 

(Contestant  objects  to  this  q uestion  on  the  grounds  that  it  is  illegal  and  irrelevant, 
and  on  the  further  grounds  that  this  witness,  as  William  E.  Carson,  are  parties  to 
this  contest ;  that  it  is  hearsay  testimony,  and  that  there  is  no  predicate  laid  to  bring 
this  testimony  in  this  contest  for  any  purpose.) 

A.  He  told  me  the  next  day  after  the  election  that  J.  V.  McDuffie  advised  separate 
boxes  run  in  certain  beats  and  that  J.  V.  McDufiSe  and  his  gang  bulldozed  and  forced 
the  colored  inspectors  of  these  beats  to  hold  separate  elections;  he  said  he  refused  to 
sign  the  returns  of  his  box  until  the  day  after  the  election,  and  did  so  under  threats 
of  McDuffie's  gang. 

St.  Clair  precinct. — The  evidence  as  to  this  precinct  shows  that  the 
election  was  regularly  held  by  the  duly  appointed  inspectors,  but  other 
parties  entirely  unauthorized  opened  polls  at  another  place  and  pro- 
ceeded without  any  registration  book  to  go  through  the  farce  of  receiv- 
ing the  ballot  of  every  man  who  offered  to  vote,  and  according  to  the 
statement  of  one  of  these  parties  214  ballots  were  cast  for  McDuffie  and 
none  for  Turpin,  and  under  this  state  of  facts  the  majority  of  the  com- 
mittee count  214  votes  for  McDuffie. 

We  refer  here  to  the  testimony  of  the  witness  upon  which  this  most 
extraordinary  action  of  the  majority  is  based :  (Record,  703.  Robert 
Adams,  witness  for  contestant,  on  cross-examination.) 

Q.  You  stated  in  your  direct  examination  that  all  of  the  inspectors  were  Republic- 
ans ;  did  you  or  any  one  else  make  any  effort  to  get  a  Democrat  to  serve  as  inspector 
with  you  ? — A.  I  did. 

Q.  Who  did  you  ask  to  serve  ! — A.  C.  M.  Smith. 

Q.  What  was  his  reply  ? — A.  His  team  was  already  made  up. 

Q.  Did  he  say  anything  further  than  the  above  remark  ? — A.  He  did  not. 

Q.  Did  you  ask  to  serve  with  him,  or  he  to  serve  with  you? — A.  I  asked  him  how 
long  before  the  polls  would  be  open. 

Q.  What  did  he  reply  ? — A.  After  a  while. 

Q.  Then  what  did  you  say? — A.  Nothing. 

Q.  Did  you  ask  Mr.  C.  M.  Smith  to  serve  with  you  in  holding  said  election  T — A.  I 
did  not. 

Q.  In  what  manner,  then,  or  in  what  way  did  y^u  endeavoi  to  get  Mr.  Smith  to 
serve  as  an  inspector  ? — A.  I  asked  him  how  long  betore  he  would  open  the  polls. 

Q.  At  what  time  was  it  that  he  made  the  remark  that  his  team  was  made  up  ? — A. 
Before  the  hour  of  8  o'clock  on  that  day. 

Q.  What  had  you  said  to  him  that  called  forth  this  remark  T — A.  I  asked  him  how 
long  before  he  would  open  the  polls!^ 

Q.  In  answer  to  your  question,  how  long  before  he  would  open  the  polls,  did  he 
then  remark  in  reply  that  his  team  was  made  up  ? 

(Contestant  objects  to  this  question  on  the  grounds  that  it  is  irrelevant  and  had 
nothing  to  do  with  the  issue.) 

A.  That  was  before. 

Q.  What  did  Mr.  C.  M.  Smith  say  to  you  and  what  did  you  say  to  him  the  first  time 
that  you  had  a  conversation  with  him  on  the  morning  of  the  election? — A,  I  asked 


m'duffie  vs.  turpin.        *  313 

him,  I  says,  "  "Well,  'sqnire,  I  suppose  we  holds  an  election  here  to-day."     "  Yes ;  my 
team  is  already  made  up." 

Q.  What  did  you  say  to  C-  M.  Smith,  and  what  did  he  say  to  you  in  the  second  con- 
versation f — A.  "  'Squire,  how  long  before  you  open  the  polls  ?"  and  he  replied,  "After 
a  while." 

Q.  Did  you  have  a  registration  list  or  book,  furnished  by  A.  E.  CafFe,  judge  of 
probate,  to  the  inspectors  of  each  beat? — A.  I  did  not. 

Q.  Did  you  or  any  one  else  register  all  the  voters  that  voted  at  the  pretended  elec- 
tion which  you  held? — A.  We  did  not  register  all,  but  did  all  them  who  had  not 
voted  there  before. 

Q.  If  you  had  no  register  of  the  voters  how  did  you  know  who  had  heretofore  reg- 
istered, and  were  therefore  qualified  to  vote  and  who  were  not  ? — A.  1  asked  them  be 
fore  I  taken  their  vote. 

Q.  Then  the  only  evidence  that  you  had  of  a  voter  having  registered  and  thereby 
qualifying  himself  for  voting  was  what  the  voter  said  himself? — A.  It  was. 

Q.  Who  wrote  the  names  of  the  voters  on  the  poll-list  f — A.  Myself  and  Humphry 
Adams. 

Q.  You  stated  in  your  direct  examination  that  you  got  the  registration  papers  from 
J.  V.  McDuffle  ;  do  you  mean,  the  papers  on  which  to  register  new  voters  or  the  papers 
on  which  to  make  a  poll-list? — A.  To  register  new  voi«rs. 

.  Q.  Were  you  or  any  one  else  that  participated  in  that  so-called  election  appointed 
or  authorized  by  W.  W.  Drane,  the  chief  registrar  of  the  county,  to  register  the 
names  of  persons  who  had  not  heretofore  registered  ? — A.  I  was  not. 

Q.  Yon  stated  in  your  direct  examination  that  two  tally-sheets  were  made;  what 
did  you  do  with  each  one  of  them? — A.  I  put  one  in  the  ballot-box  with  the  poll-list 
and  certificates,  and  I  kept  the  other  one  at  hoirie  for  a  contest. 

Q.  What  did  you  do  with  this  ballot-box  ? — A.  I  sealed  it  up  and  give  it  to  the  re- 
turning officer. 

Q.  what  did  you  do  with  the  ballots  that  were  cast  there  that  day? — A.  I  have 
them  at  home  row. 

Q.  Have  you  been  served  with  a  notice  by  any  one  to  preserve  or  to  produce  said 
ballots  ? — A.  I  have  been  served  with  no  notice  to  produce  the  ballots,  and  I  was  told 
by  J.  V.  McDuffie  to  hold  the  ballot-box  containing  the  tickets  soon  after  the  elec- 
tion. 

Q.  Have  yon  any  information  that  there  was  an  election  held  at  St.  Clair  on  the 
6th  day  of  November,  188r*,  by  C.  M.  Smith  and  others? — A.  I  have  not. 

Q.  Did  anybody  tell  you  on  that  day  or  since  thattime  thatC.  M.  Smith  and  others 
held  an  election  there  that  day  ?—  A.  They  did  not. 

Q.  Did  you  ever  hear  of  an  election  being  held  there  that  day  by  C.  M.  Smith  and 
others  before  this  examination  commenced  ? — A.  I  have  not. 

(Contestant  admits  that  C.  M.  Smith  and  others  did  open  the  polls  a  short  time  be- 
fore 5  o'clock  that  day,  but  not  before.) 

Q.  In  what  house  is  the  election  usually  held  at  that  place  ? — A.  In  C.  M.  Smith's 
house. 

It  will  be  observed  that  this  witness  states  that  one  of  the  regularly 
appointed  inspectors  was  present  on  the  ground  before  8  o'clock  in  the 
morning,  and  that  this  inspector  in  effect  told  him  he  was  ready  to  pro- 
ceed to  hold  the  election.  So  there  was  no  reason  to  believe  no  poll 
would  be  opened  as  stated  by  the  majority  in  their  report.  He  further 
admits  that  he  had  no  registry  of  voters,  and  that  he  received  the  bal- 
lots of  all  who  said  they  were  registered. 
Farmer sville  precinct. — Here  again  we  find  two  polls  wereopened.  At 
o'clock  one  of  the  regularly  appointed  inspectors  asso^'jated  with  him 
Eepublican  and  a  Democrat,  and  they  opened  the  polls  and  conducted 
16  election. 

J.  D.  Mocker,  being  called  by  contestee,  and  being  sworn,  doth  depose  and  saith: 
Q.  What  is  your  name  and  your  age,  and  where  do  you  reside,  and  how  long  have 
resided  there? — A.  J.   D.   Mooror,  jr.;  my  age  is  thirty-one   years;  I   live  in 
rarmersville  beat.  No.  5,  Lowndes  County,  Ala.  ;  I  have  resided  there  all  my  life. 

Q.  Did  you  act  as  inspector  at  your  precinct  of  an  election  on  the  6th  day  of 
Tovembei ,  18Rd,  for  electors  forjPresident  and  Vice-President,  and  for  Representative 
the  Fifty-first  Congress  of  the  United  States  from  the  Fourth  Congressional  district 
'  Alabama  ? — A.  I  did. 
Q.  By  whom  were  you  notified  of  your  appointment  as  inspector,  and  about  what 
le  ? — A.  Mr.  Haynes,  the  sheriff  of  Lowndes  County,  notified  me  ;  I  don't  recollect 
^hat  time  it  was,  but  it  was  about  ten  days  before  the  election. 


314  m'duffie  vs.  turpin. 

Q.  Who  acted  -with  yon  as  inspectors  at  that  election  ? — A.  D.  6.  Moorer  and  Har- 
rison Coleman. 

Q.  To  what  political  party  did  these  parties  belong? — A.  Harrison  Coleman  was  a 
Republican,  and  myself  and  D.  G.  Moorer  were  Democrats. 

Q.  What  time  on  the  morning  of  November  the  6th,  1888,  did  you  open  the  polls? — 
A.  It  was  a  little  after  8  o'clock. 

Q.  How  long  did  you  continne  to  hold  open  the  polls,  and  when  did  you  close  the 
polls? — A.  We  held  it  open  from  the  opening  to  the  usual  hour  of  closing  ;  I  thiak  it 
was  5  o'clock. 

Q.  Did  you  make  the  returns  of  the  votes  cast  there  that  day,  and  to  what  offices 
did  you  deliver  the  returtfs  ? — A.  We  did,  and  delivered  them  to  the  bailiff. 

(The  witness  was  handed  a  paper  supposed  to  be  a  certificate  or  returns  of  the 
election,  and  was  asked  to  look  at  this  certificate  and  state  if  it  is  a  correct  copy  of 
the  certificate  or  returns  ;  and  also  state  how  many  votes  were  cast  for  L.  W  Turpin 
for  a  Representative  to  the  Fifty-first  Congress,  aud  how  many  for  J.  V.  McDuffie  as 
Representative  to  Fifty-first  Congress.) 

A.  It  is  a  correct  copy  of  the  returns.  There  was  26  votes  cast  there  that  day,  and 
26  for  Turpin  and  none  for  McDuffie. 

Q.  Do  you  know  of  any  other  persons  holding  or  attempting  to  hold  in  that  precinct 
an  election  on  that  day  ? — A.  I  do. 

Q.  What  time,  if  you  kaow,  did  they  open  the  poll  or  begin  to  hold  their  electiort  ? 
Was  it  before  you  and  your  other  inspectors  had  opened  your  polls? — A.  I  think  it 
was  about  9  o'clock,  and  after  we  had  opened  our  polls. 

Q.  Can  you  state  about  how  long  after  you  opened  your  polls? — A.  It  was  about 
half  an  hour  or  three-quarters  after  we  opened. 

Q.  At  what  place  did  they  hold  their  election  ? — A.  In  Mr.  Youngblood's  cotton 
yard  or  lot. 

Q.  At  what  point  did  yon  and  your  inspectors  hold  your  election  ? — A.  We  held  it 
in  Youngblood's  store,  in  his  office. 

P.  J.  Rast,  being  called  and  being  sworn,  doth  depose  and  saith: 

Q.  What  is  your  name,  your  age,  and  where  do  you  reside,  and  howlonghave  you 
resided  there? — A.  P.  J.  Rast;  my  age  is  forty-six  years;  I  reside  in  Farmersville 
beat,  No.  5,  Lowndes  County,  Ala. ;  I  have  resided  there  near  eleven  years. 

Q.  Did  you  act  as  inspector  or  in  any  other  capacity  at  your  precinct  at  an  election 
on  the  6th  day  of  November,  1888,  for  electors  for  President  and  Vice-President,  aud 
Representative  in  the  Fifty- first  Congress  from  this  district ;  if  so,  in  what  capacity  ? — 
A.  I  did,  as  United  States  supervisor. 

Q.  Who  were  the  State  inspectors  ofthe  election  that  day  ? — A.  J.  D.  Moorer,  jr.,  D. 
G.  Moorer,  and  Harrison  Coleman. 

Q.  Ta  what  political  party  do  these  parties  belong  ? — A.  J.  D.  Moorer,  jr.,  and  D. 
G.  Moorer  belong  to  the  Democratic  party,  and  I  suppose  that  Harrison  Coleman  he 
belongs  to  the  Republican  party. 

Q.  What  time  on  the  morning  of  the  election  were  the  polls  opened  in  that  beat  ? — 
A.  Between  8  and  9  o'clock. 

Q.  How  long  did  you  continue  to  hold  open  and  when  did  you  close  the  polls? — A. 
All  day  and  until  5  o'clock  in  the  evening. 

(The  certificate  known  as  Exhibit  2  was  handed  to  the  witness  and  asked  did  he 
see  and  supervise  and  look  at  said  exhibit  and  state  whether  it  is  a  correct  copy  of 
the  returns.) 

A.  It  is. 

Q.  How  many  votes  were  cast  there  that  day,  and  how  many  were  cast  for  L.  W. 
Turpin,  and  how  many  for  J.  V.  McDuffie  for  Congress? — A.  Tweuty-six  in  all,. aud 
26  for  L.  W.  Turpin  and  none  for  McDuffie. 

Q.  What  is  the  usual  total  vote  cast  for  all  political  parties  at  your  precinct? — A. 
About  120. 

Q.  Do  you  know  of  any  other  persons  holding  or  attempting  to  hold  an  election 
there  that  day  ? — A.  I  know  it  from  information,  not  from  any  personal  knowledge. 

Q.  Do  you  know  what  time  these  persons  began  holding  their  election  ;  was  it  be- 
fore you  and  the  inspectors  had  opened  your  polls  or  after  that  ? — A.  I  do  not ;  it  was 
after  we  opened  our  polls. 

Q.  Can  you  state  about  how  long  after  you  opened  your  polls? — A.  I  can  not. 

Q.  At  what  place  did  they  hold  their  election  ? — A.  In  Youngblood's  cotton  yard. 

Q.  At  what  point  did  you  and  your  crowd  hold  your  election  ? — A.  In  shed-room 
of  Youngblood  &  Co.'s  store. 

Cross-examination  by  W.  C.  Griffin,  attorney  for  contestant : 
Q.  Can  Harrison  Coleman,  one  ofthe  inspectors,  read  and  write? — A.  I  think  not. 
Q.  Whilst  you  were  in  the  house  where  the  election  was  being  held  were  you  in  a 

position  to  see  the  parties  who  were  holding  the  election  in  the  cotton  yard  ? — A.  I 

was  not. 


m'duffie  vs.  turpin. 


315 


Q.  Coald  any  of  the  parties  who  were  engaged  in  holding  the  election  where  yon 
were  see  those  who  were  holding  the  election  in  the  cotton  yard  ? — A.  They  could 
not  without  leaving  the  room. 

Q,  Where  were  you  that  morning  from  8  o'clock  up  to  the  time  that  the  polls  of  the 
election  that  you  participated  in  were  opened  ? — A.  In  my  own  store. 

Q.  How  far  waa  your  store  from  Youugblood's  store,  where  you  held  the  election  ; 
and  could  you  see  the  cotton  yard  from  your  store  where  these  other  parties  held  their 
election,  or  was  it  on  the  other  side  of  the  house  from  you  ? — A.  About  60  to  100  feet 
from  Youugblood's  store.  The  cotton  yard  was  immediately  in  front  and  in  full  view, 
commencing  about  60  feet,  the  nearest  part,  and  running  back  30  or  40  yards. 

Q.  About  how  many  negroes  were  there  that  day  ? — A.  I  saw  about  a  dozen  there ; 
may  have  been  more. 

Redirect : 
Q.  Was  there  anybody  at  the  place  where  they  held  their  election  in   the  cotton 
yard  when  you  left  your  store  that  morning  to  go  to  your  polling  place  ? — A.  I  saw 
no  one  there. 

This  testimony  is  not  contradicted  in  any  particular  by  the  witnesses 
for  the  contestant. 

What  excuse  was  there  for  holding  this  irregular  poll?  Upon  what 
ground  can  it  be  justified? 

Without  reason  or  excuse  certain  colored  Republicans  go  through  the 
form  of  receiving  the  ballots  of  all  who  present  themselves,  without  any 
evidence  as  to  their  right  to  vote,  and  the  majority  of  the  committee 
count  40  votes  for  the  contestant  at  this  so  called  polling  place. 

Conceding  all  that  is  claimed  by  the  majority  of  the  committee  re- 
specting the  other  precincts  of  this  county,  the  vote  will  stand  as  fol- 
lows: 


Turpin. 

McDuffle. 

2  131 
249 

1,442 

Deduct  Letohatcbie  precinct 

19 

Deduct  Fort'Deposit . ... 

1,  882 
CO 

1,423 

1,823 
20 

204 

1,842 
1,627 

1,627 

215 

HALE  COUNTY. 

In  this  county  three  precincts,  Greensborough,  Hollow  Square,  and 
Cedarville,  are  assailed  by  the  majority  of  the  committee  in  their 
report. 

The  vote  as  returned  by  the  election  officers  was  as  follows : 


Tnrpin. 

McDuffio. 

Greensborough 

577 
362 
364 

330 

Hollow  Square  

169 

Cedarville 

153 

1,303 

652 

316  m'duffie  vs.  tuepin. 

The  vote  as  returned  by  the  majority  of  the  committee  is  as  follows 


MoDuffie. 

Greensborongh 210  693 

Hollow  Square 50  475 

Cedarville '27  490 

1,668 

Greensborough precinct. — At  this  precinct  a  colored  Kepublicau  swears 
he  issued  a  large  number  of  Republican  tickets,  and  two  other  colored 
liepublicans  swear  they  took  a  list  of  G97  men  who  said  they  voted  the 
Jtejmblican  ticket.    This  is  all  the  testimony  for  the  contestant. 

On  behalf  of  the  contestee  the  following  witnesses  testified: 

First.  Joshua  Clark,  colored  Republican  inspector.    (Record,  547.) 

He  swears  he  received  every  ballot  that  v;as  voted  and  saw  it  put  in 
the  ballot-box. 

He  swears  that  he  saw  the  ballots  counted,  and  he  examined  each 
one  to  see  whether  the  names  were  properly  called. 

He  swears  that  the  tickets  were  fairly  and  honestly  counted  and  that 
Turpin  received  every  vote  that  was  returned  for  him. 

Then  he  testifies  as  follows : 

23.  Q.  Do  not  a  great  many  of  the  colored  people  get  tieketa  from  the  person  who  issues 
Republican  tickets,  and  change  said  tickets  for  Democratic  tickets,  and  vote  the  Democratic 
ticket  secretively^ — A.  Yes,  sir. 

24.  Q.  Why  do  a  great  many  of  the  colored  people  vote  the  Democratic  ticket  secretively  f — 
A.  Because  they  feared  to  do  it,  and  are  'baked  about  it  by  some  of  the  leaders  of  the  col- 
ored people, 

251  Q.  Did  you  see  any  of  the  colored  people  on  the  Qth  day  of  November,  1888,  as  they 
were  coming  to  the  polls  with  one  or  two  tickets  in  their  hands? — A.  I  seen  a  good  many  of 
the  colored  people  come  inside  of  the  court-house  and  put  the  ticket  that  they  had  in  their 
hand  into  their  pocket,  and  take  one  out  of  their  pocket  and  bring  it  tome  to  vote. 

26.  y.    Were  the  polls  held  in  the  court-house  f — A.  It  was. 

27.  Q.  About  how  many  colored  people  did  you  see,  as  they  came  in  the  court-house,  put 
the  ticket  that  they  had  in  their  hands  into  their  ])ockefs  and  take  another  ticket  out  of  their 
pockets  ? — A.  I  don't  know  how  many,  but  reckon  I  saw  ful'ly  fifty  or  a  hundred  do  it. 

2ci.  Q.  Did  you  watch  them  to  seexchether  they  changed  their  tickets^ — A.  No,  sir  ;  I  teas 
not  particularly  watching  them. 

This  witness  is  unimpeached  and  his  testimony  would  seem  to  be  con 
elusive  as  to  the  fairness  of  the  election  at  this  precinct. 

There  was  a  colored  Republican  Federal  supervisor  present  and  he 
"agreed  that  it  was  done  fairly  and  squarely."    (Record,  547.) 

Second.   Marcellus  V.  Hill  (Record,  400)": 

1.  Q.  What  is  your  name,  age,  where  do  you  reside,  and  how  long  have  you  so 
resided? — A.  Marcellus  V.  Hill;  lam  thirty-three  years  old;  I  live  in  beat  No.  4, 
Hale  County;  have  lived  there  all  my  life. 

2.  Q.  What  is  your  occupation  ? — A.  Farmiug. 

3.  Q.  Do  you  own  any  pro^jerly?  If  so,  what? — A.  Yes,  sir;  land  and  stock  ;  I 
own  185  acres  of  land. 

4.  Q.  What  race  do  you  belong  to  ? — A.  To  the  colored  race. 

5.  Q.  Where  were  yon  on  the  6th  of  November,  1888? — A.  At  Greensboro,  at  the 
election. 

6.  Q.  Did  you  get  a  ticket  from  Mathew  Morse  or  Dave  Jones  on  that  day ;  and, 
if  yea,  what  did  yon  do  with  it? — A.  I  got  one  from  Mathew  Morse — a  Republican 
ticket — I  gave  it  to  Capt.  Cad  Jones. 

7.  Q.  What  ticket  did  you  vote,  if  any,  on  that  day  ? — A.  I  voted  the  Doinocratio 
ticket  straight  ont. 

8.  Q.  Do  not  a  good  many  of  the  colored  people  of  your  beat  get  Republican 
tickets  from  the  person  issuing  them  and  then  vote  theDemocratic  ticket  t — A.  They 
say  they  did. 


m'duffie  vs.  tukpin.  317 

\J.  Q.  Name  those  whom  yon  heard  say  that  they  received  a  Republican  ticket  and 
thon  voted  the  Democratic  ticket. — A.  Tom  Hamilton,  Mose  Hamilton,  and  Stephen 
Hamilton.    Those  are  about  all  I  had  any  talk  with  about  it. 

10.  Q.  Can  yon  read  and  write? 

And  further  this  deponent  sayeth  not. 

This  man  says  he  got  a  ticket  from  the  Eepublican  ticket-holder  but 
voted  the  straigjht  Democratic  ticket,  and  that  many  colored  men  say 
they  got  Republican  tickets  and  then  voted  the  Democratic  ticket. 

Third.  C.  0.  Gewin  (Record,  398) : 

1.  Q.  What  is  your  name,  age,  and  residence,  and  how  long  have  yon  resided 
there  t — A.  C.  C.  Gewin ;  my  age  is  thirty-eight  years  ;  beat  No.  4,  Greensboro,  is  my 
residence,  and  has  been  since  the  lat  of  September  last. 

2.  Q.  Where  were  you  on  the  6th  day  of  last  November,  1888  ? — A.  In  Greensboro 
at  the  election. 

3.  Q.  Did  you  see  Mathew  Morse,  Dave  Jones,  and  A.  B.  Hunter  on  that  day  ;  and 
if  so,  what  were  they  doing  and  where  were  they  ? — A.  I  did  see  them  all ;  they  were 
distributing  tickets  to  the  colored  people  of  the  beat ;  they  were  located  about  10  or 
15  feet  in  front  of  the  court-house,  a  little  to  the  west  of  the  door. 

4.  Q.  Where  were  the  polls  held  ? — A.  In  the  court-house,  in  the  back  part  of  the 
room. 

5.  Q.  Could  the  said  Morse,  Jones,  and  Hunter  see  the  electors  when  they  handed 
their  ballots  to  the  inspectors? — A.  They  could  not  from  where  they  were  located. 

6.  Q.  Were  Mor.se,  Jones,  and  Hunter  standing  in  about  the  same  place  all  day? — 
A.  They  were  there  from  the  time  the  polls  opened  until  they  closed. 

7.  Q.  Were  there  not  Democratic  tickets  with  L.  W.  Turpin's  name  as  candidate 
for  Congress  on  them,  on  the  table  where  the  polls  were  held  ? — A.  There  were  there 
and  at  several  other  places  in  the  court-house. 

8.  Q.  Could  not  the  electors  to  whom  Jones,  Morse,  and  Hunter  issued  tickets  have 
changed  them  without  being  seen  by  Jones,  Morse,  and  Hunter? — A.  They  could. 

9.  Q.  What  office  do  you  hold  in  this  county  ? — A.  Sheriff's  office. 

10.  Q.  Is  it  not  your  duty  as  sheriff  to  appoint  the  inspectors  to  hold  the  election 
at  all  the  precincts? — A.  It  is  mine,  together  with  the  probate  judge  and  the  circuit 
court  clerk. 

11.  Q.  From  what  class  of  men  did  you  appoint  the  inspectors  at  the  November 
election,  1888  ? — A.  We  appointed  the  ijest  men  in  the  Democratic  and  Eepublican 
parties. 

12.  Q.  Who  were  the  inspectors  at  beat  No.  4  on  November  6,  1888? — A.  W.  H. 
Moore,  J.  M.  Jefferson,  and  Josh  Clark. 

13.  Q-  To  what  party  did  these  men  belong? — A.  Moore  and  Jefferson  were  known  as 
Democrats  and  Clark  was  known  as  a  Kep  iblican. 

14.  Q.  Do  you  know  Moore  and  Jefferson  ? — A.  Yes,  sir  ;  I  do. 

15.  Q.  Do  you  know  their  general  reputation  in  the  community  in  which  they  live 
for  truth  and  veracity  ;  and,  if  yea,  is  it  good  or  bad  ?— A.  I  do ;  it  can't  be  excelled. 

16.  Q.  Do  you  know  Josh  Clark's  general  reputation  in  the  community  in  which 
he  lives ;  and,  if  so,  is  it  good  or  bad  ?— A.  I  do ;  it  is  good. 

It  appears  from  this  deposition  that  the  Republican  ticket-holders 
were  outside  of  the  court-house  when  the  poll  was  held  and  could  not 
see  the  voters  after  they  entered  the  house ;  that  the  Democratic  tickets 
were  at  various  places  around  the  polls  and  the  voters  had  easy  access 
to  them,  and  that  the  best  men  of  both  parties  were  appointed  inspect- 
ors. 

Fourth :  T.  W.  DeYampert.  (Record,  548). 

1.  Q.  What  is  your  name  and  age,  and  where  do  you  reside,  and  how  long  have  you 
so  resided?— A.  My  name  is  T.  W.  De  Yampert ;  I  am  fifty-three  years  of  age;  I  re- 
side in  Greensboro,  beat  No.  4 ;  I  have  so  resided  for  the  last  ten  years. 

2.  Q.  Where  were  you  on  the  6th  day  of  last  November  ? — A.  I  was  in  beat  No.  4  at 
the  election,  and  acted,  by  request  of  Mr.  R.  B.  Douglas,  assistant  registrar  as  reg- 
istrar for  that  day. 

3.  Q.  About  how  many  colored  electors  registered  there  that  day?— A.  Abont 
seventy-five  or  eighty. 

4.  Q.  Didyou  issue  any  Democratic  tickets  to  the  colored  electorsof  said  beat  on  that 
day? — A.  I  gave  Democratic  tickets  to  all  I  registered  except  four  or  five.  I  don't 
now  remember  more  than  two  or  three  who  said  they  did  not  want  Democratic  tickets. 

5.  Q.  What  name  was  on  said  tickets  as  a  candidate  for  Congress  from  the  Fourth 
district  of  Alabama  ?— -A.  Louis  W.  Turpin. 


318  m'duffie  vs.  tuepin. 

6.  Q.  What  flid  the  electors  to  whom  you  issued  tickets,  as  before  stated,  do  with 
said  tickets? — A.  I  am  certain  and  satisfied  that  some  of  them  voted  the  said  tickets, 
as  they  carried  them  directly  from  me  into  the  court-house  where  the  ballot-ljox  was. 
I  did  uot  watch  all  of  them,  and  consequently  could  not  say  as  to  all  of  them. 

Here  we  find  seventy-five  or  eighty  colored  voters,  except  four  or  five, 
taking  Democratic  tickets  from  oue  man  and  some  going  directly  into 
the  court-house  with  them. 

'"  If  the  majority  conclude  that  because  a  man  took  a  Republican  ticket 
and  then  passed  into  the  court-house  he  necessarily  voted  the  Republi- 
can ticket,  then  why  do  they  not  hold  that  because  these  men  took 
Democratic  tickets  and  then  passed  into  the  court  house  they  neces- 
sarily voted  the  Democratic  ticket  ?  We  leave  the  majority  of  the 
committee  to  ponder  over  their  consistency. 

We  hold  that  there  is  nothing  in  the  records  to  impeach  the  returns 
from  this  precinct. 

Gedarville  precinct.— Agnin  we  have  presented  the  same  idea  that 
colored  men  necessarily  vote  the  Republican  ticket  and  that  the  num- 
ber of  Republican  votes  cast  is  gauged  by  the  number  of  Republican 
tickets  issued.  Again  we  find  a  ticket-holder  issuing  hundreds  of 
tickets  and  superintending  the  recording  of  the  names  of  the  voters,  and 
then  watching  each  voter  as  he  approached  the  polls  and  swearing  he 
cast  the  identical  ballot  he  received  from  him,  the  ticket-holder.  It  is 
taxing  the  credulity  of  any  man  too  much  to  believe  any  such  unrea- 
sonable statement  or  any  such  improbable,  if  not  impossible,  thing. 
Common  sense  and  common  experience  teach  us  that  such  statements 
are  false. 

But  in  this  instance  the  falsehood  is  exposed  by  direct  and  positive 
evidence: 

A  colored  man  by  the  name  of  Crook  was  the  ticket-holder,  and  he 
swears  he  issued  490  tickets,  and  that  they  were  voted  for  McDuflBe; 
that  he  was  standing  or  sitting  in  a  position  from  which  he  could  see 
and  did  see  the  tickets  he  issued  voted.  He  undertakes  to  give  the 
manner  in  which  many  of  the  voters  named  approached  the  polls. 

He  displays  a  memory  which  was  never  equaled  in  the  history  of  the 
world,  and  we  refer  to  his  testimony  as  a  specimen  of  that  relied  upon 
by  the  majoiitj-  in  this  case. 

That  Crook  was  untruthful,  see  testimony  of  D.  D.  Ward.  (Record, 
548): 

1.  Q.  What  is  your  name,  age,  and  where  do  you  reside,  and  how  long  have  you  so 
resided? — A.  I  am  thirty-eight  years  old  ;  my  name  is  D.  W.Ward;  I  reside  in  Cedar- 
ville,  beat  No.  7,  and  have  so  resided  six  years. 

2.  Q.  Where  were  you  on  the  6th  day  of  last  November?— A.  I  was  in  Cedarville, 
Hale  County,  Ala.,  beat  No.  7. 

3.  Q.  What  were  you  doing  there  at  that  time? — A.  I  was  acting  as  clerk  of  the 
election. 

4.  Q.  Was  there  any  one  issuing  tickets  to  the  colored  electors  there  on  that  day? — 
A.  There  was  ;  Dick  Crook  issued  them. 

5.  Q.  Did  said  Dick  Crook  watch  every  elector  to  whom  he  had  issued  a  ticket,  to 
p'^e  whether  said  elector  voted  the  same  ticket  that  he  had  given  them? — A.  He  did 
not.  From  where  I  was  sitting,  behind  the  table,  I  could  just  see  the  top  of  his  hat, 
because  there  was  a  big  crowd  l)etween  Dick  Crook  and  the  poll?,  and  it  was  irapos- 
tible  for  him  to  have  watched  the  said  electors  or  to  know  what  ticket  they  voted. 

6.  Q.  Was  there  not  a  large  crowd  standing  around  said  Dick  Crook  during  the  time 
he  was  issuing  the  tickets  ? — A.  There  was  a  very  large  crowd  standing  around  him. 

7.  Q.  Was  there  notalso  a  large  crowd  standing  around  the  polls  waiting  for  an  op- 
portunity to  vote  ? — A.  The  polls  were  held  on  the  public  road,  with  ropes  stretched 
around  said  polls  to  keep  the  crowd  back,  with  only  one  place  for  the  elector  to  hand 
in  his  vote,  and  there  was  a  large  crowd  around  pulling  aud  scuffling  to  get  their 
vote. 


m'duffie  vs   turpin.  319 

William  H.  Locke  (Record,  549) : 

7.  Q.  Was  there  any  one  there  on  that  day  issuing  tickets  to  the  colored  electors  ; 
if  yea,  who  was  he?— A.  There  was;  Dick  Crook  issued  tickets  there  on  that  day. 

8.  Q.  Did  Dick  (Jrook  watch  the  electors  to  whom  he  had  given  tickets  to  see  if 
they  voted  the  tickets  he  had  gi^en  them? — A.  He  did  not. 

y.'  Q.  How  do  you  know  that  he  did  not  watch  the  electors  to  whom  he  had  given 
tickets  to  see  if  they  voted  the  tickets  he  had  given  them? — A.  1  was  standing 
in  4  or  5  feet  of  him  most  of  the  day,  and  he  (Dick  Crook)  had  his  back  to  the  polls 
most  of  th«  daj'. 

10.  Q.  Where,  were  you  and  Dick  Crook  sitting  at  on  that  day  ? — A.  Within  30  or 
40  feet  of  the  polls ;  he  sitting  on  one  end  of  a  wagon-body  and  I  standing  at  the 
other. 

11.  Q.  Was  there  not  a  large  crowd  standing  around  Diek  Crook  most  of  the  day  ? — 
A.  There  was. 

12.  Q.  Was  it  possible  for  him,  with  the  crowd  standing  around  him,  to  see  whether 
the  electors  voted  the  same  tickets  he  gave  him  ? — A.  It  was  not  possible  for  him  to 
see  it. 

15.  Q.  Did  the  electors,  after  they  had  gotten  a  ticket  from  Dick  Crook,  go  imme- 
diately to  the  polls? — A.  No;  they  did  not. 

Did  colored  men  take  Democratic  tickets  and  have  access  to  them  ? 
William  H.  Locke  (Record,  549) : 

1.  Q.  What  is  your  name,  age,  and  where  do  you  reside,  and  how  long  have  you  so 
resided? — A.  My  name  is  William  H.  Locke;  I  reside  at  Cedarville  Beat  No.  7,  Hale 
County,  and  I  have  so  resided  about  twelve  years  ;  I  am  forty-eight  years  old. 

2.  Q.  Where  were  yon  ou  the  6th  day  of  November,  1888,  and  what  were  you 
doing  ? — A.  I  was  at  Cedarville,  Beat  No.  7,  where  the  election  was  held. 

3.  Q.  What  did  you  do  on  that  day  ? — A.  I  acted  as  assistant  registrar. 

4.  Q.  About  how  many  colored  electors  did  yon  register  on  that  day  1 — A.  About  sixty. 

5.  Q.  About  how  many  of  those  you  regixtered  did  you  give  Democratic  tickets? — A.  I 
could  not  say  ;  I  issued  about  seventy-Jive  tickets,  mostly  to  those  whom  I  registered. 

6.  Q.  Did  the  tickets  that  you  issued  have  L.  W.  Turpin*s  name  on  them  as  a  candidate 
for  Congress? — A.   Yes,  sir. 

13.  Q.   Were  there  not  a  great  many  Democratic  tickets  on  the  table  where  the  polls  were  ■ 
held  ? — A .  There  were. 

14.  Q.  Were  there  not  Democratic  tickets  lying  around  the  polls  in  several  places? — A. 
There  were. 

16  Q.  Could  not  the  electors  to  iohom  Dick  Crook  issued  tickets  have  voted  some  other 
ticket  ivithout  his  knoicledge  ? — A.  Yes. 

17.  Q.  Do  not  the  leading  colored  people  of  your  beat  abuse  and  vilify  any  colored  man 
who  votes  the  Democratic  ticket  publicly  ? — A.  They  do. 

Was  the  election  fair  and  the  count  honest  (Record,  550)? 
Van  Hambright,  being  called  and  duly  sworn,  deposes  and  says: 

1.  Q.  What  is  your  name,  age,  and  where  do  you  reside,  and  how  long  have  yoaso 
resided? — A.  My  name  is  Van  Haiubnght;   lam  forty-seven  years  old;    I  live  in 

.  Hale  County,  beat  No.  7,  commonly  called  Cedarville  beat;  I  have  so  resided  for  the 
.    past  twenty-five  years. 

2.  Q.  Are  you  a  Democrat  or  a  Republican  ? — A.  I  am  a  Republican. 

3.  Q.  Where  were  you  on  the  6th  day  of  November,  1888? — A.  1  was  at  Cedarville 
when  the  election  was  held, 

4.  Q.  What  were  you  doing  there?— A.  I  was  one  of  tfie  inspectors  of  the  election. 
T).  Q.  Were  you  present  during  the  entire  day  ?— A.  Yes,  sir. 

6.  Q.  Who  were  the  other  inspectors? — A.  Mr.  O'Donuell  and  Mr.  Percy  Waller. 

7.  Q.  When  did  yon  count  the  votes  or  ballots? — A.  Immediately  after  the  polls 
were  closed. 

8.  Q.  Were  yon  not  present  while  the  votes  or  ballots  were  being  connted,  and 

Id  you  not  assist  in  counting  them? — A.  I  was  present  and  assisted  in  counting  the 
allots. 
9.  Q.  Were  not  the  said  ballots  honestly  and  fairly  counted  as  required  by  law  ? — A. 
!H,  sir. 
10.  Q.  Are  you  a  colored  man  or  a  white  man  ? — A.  I  am  a  colored  man. 

This  is  the  witness  referred  to  in  the  report  of  the  majority  as  "  the 
illiterate  colored  inspector." 

He  signs  his  own  name,  and  there  is  nothing  to  indicate  that  he  is  an 
illiterate  or  ignorant  man.    He  certainly  compares  most  favorably  with 


320  m'duffie  vs.  turpin. 

Crook,  the  ticket  holder,  upon  whose  testimony  the  majority  lay  so 
imicli  stress,  for  on  page  80  of  the  record  it  will  be  observed  Crook  could 
not  write,  and  signed  his  name  Uick  (his  x  mark)  Crook. 

1).  W.  Ward  (Record,  549). 

This  witness  was  one  of  the  clerks  at  the  election  and  fully  corrobo- 
liites  the  testimony  of  Van  Hambright,the  colored  Republican  inspector 
quoted  and  referred  to  above. 

We  sustain  the  returns  from  this  precinct. 

Conceding  the  other  precincts  of  this  county  t^o  be  as  claimed  by  the 
committee,  the  vote  will  stand : 


ifarpin. 

McDuffie.  . 

3,170 
36'J 

1,220 

Deduct  Hollow  Square  as  returned 

169 

2,808 
59 

1,051 
475 

2,867 
1,  .=526 

1,  526 

1,341 

WILCOX  COUNTY. 

Allenton. — The  election  officers,  three  in  number,  two  Democrats  and 
one  Republican,  returned  under  oath  that  the  number  of  votes  cast  at 
this  precinct  was  309,  of  which  number  Turpin  received  242  and  Mc- 
J)uffie  received  67.  The  only  evidence  in  the  record  respecting  this 
precinct  is  that  of  I.  L.  Grace,  a  colored  man  and  a  member  of  the  Re- 
l)iiblicau  executive  committee,  who  testifies  that  he  stood  between  35 
and  40  feet  of  the  polls  all  day  ;  that  he  issued  to  316  colored  men  each 
a  ticket  with  McDuffie's  name  on  it ;  that  he  saw  the  voter  deposit  his 
ballot;  that  three  colored  men  voted  for  Turpin  and  between  forty  and 
forty-five  white  voters  voted  there  that  day.  On  this  testimony  alone 
the  majority  set  aside  the  sworn  return,  and  count  this  precinct, 
Turpin  27,  McDuffie  316.  The  tickets  were  not  examined,  the  voters 
were  not  examined,  and  the  testimony  of  the  only  witness  that  was  ex- 
amined gives  Turpin  either  16  or  21  more  votes  than  the  committee 
gives  h'lm.  The  undersigned  do  not  believe  that  the  official  return  of 
this  precinct  should  be  set  aside. 

Pine  Apple. — The  election  officers,  three  in  number,  two  white  and 
one  colored,  returned  under  oath  that  the  number  of  votes  cast  at  this 
precinct  was  381,  of  which  number  Turpin  received  348  and  McDuffie 
received  33.  Two  witnesses  are  examined  as  to  this  precinct ;  one 
knows  nothing  except  that  he  saw  a  list  of  211  names  said  to  have  voted 
for  McDuffie.  The  list  is  not  produced.  The  other  testifies  that  he 
issued  211  McDuffie  tickets  to  that  many  colored  voters  and  saw  them 
go  to  the  polls  to  vote  them.  On  this  testimony  alone  the  majority  set 
aside  the  sworn  return  of  three  election  officers  and  count  this  precinct, 
Turpin  180,  McDuffie  211.  Neither  the  tickets  in  the  box  nor  the  voters 
who  voted  were  examined.  The  undersigned  do  not  believe  that  the 
official  return  of  this  precinct  should  be  set  aside. 

Clifton. — The  election  officers,  three  in  number,  two  Democrats  and 
one  Republican,  returned  under  oath  that  the  number  of  votes  cast  at  this 
precinct  was  215,  of  which  number  Turpin  received  190,  and  McDuffie  re- 
ceived 25.    Frank  Black  and  James  Wickes,  colored  men,  swear  that 


m'duffie  vs.  turpin.  321 

233  votes  were  polled  at  the  electiou ;  that  29  of  them  were  for  Turpiu, 
and  204  were  for  McDuffie.  Black  issued  204  McDuffie  tickets  to  colored 
men,  and  saw  them  voted.  Diinaway,  oue  of  the  inspectors  of  the  elec- 
tion, swears  the  return  was  correct,  and  that  "  the  votes  cast  by 
the  electors  were  the  identical  votes  counted."  flolloman  swears  that 
neither  Black  nor  Wickes  kept  any  tally -list,  that  the  character  of  each 
is  bad,  and  that  neither  is  worthy  of  credit.  On  this  testimony  the 
majority  set  aside  the  sworn  return  of  the  election  officers  and  count  as 
cast  at  this  precinct  233  votes,  of  which  they  give  to  Turpin  29  and  to 
McDuffie  204.  Neither  the  tickets  in  the  box  nor  the  voters  who  voted 
were  examined.  The  undersigned  do  not  believe  that  the  official  return 
of  this  precinct  should  be  set  aside. 

Blade's  Bluff. — The  election  officers,  three  in  number,  returned  under 
oath  that  the  number  of  votes  cast  at  this  precinct  was  251,  of  which 
number  Turpin  received  213  and  McDuffie  received  38.  Ervin  and 
Fisher  and  Shelbourne  testify  to  the  issuing  of  205  McDuffie  tickets, 
and  aver  that  number  of  votes  were  cast  for  McDuffie  and  33  for  Turpin. 
Davis,  colored,  swears  that  a  great  many  colored  people  voted  for  Tur- 
pin ;  and  Spencer,  oue  of  the  managers  of  the  election,  swears  the 
"  votes  were  counted  as  cast."  On  this  testimony  the  majority  set  aside 
the  sworn  return  of  the  election  officers,  and  count  as  cast  at  this  pre- 
cinct 238  votes,  of  which  they  give  Turpin  33  and  McDuffie  205. 
Neither  the  tickets  in  the  box  nor  the  voters  who  voted  were  exam- 
ined. The  undersigned  do  not  believe  that  the  official  return  of  this 
precinct  should  be  set  aside. 

Fairie  Bluff. — The  election  officers,  two  white  and  one  colored,  under 
oath,  returned  that  the  number  of  votes  cast  at  this  precinct  was  259, 
of  which  number  Turpin  received  245  and  McDuffie  received  14.  Two 
witnesses,  cofored  men,  testify  that  254  votes  were  polled  that  day ;  that 
241  were  for  McDuffie  and  13  for  Turpin ;  that  they  distributed  tickets, 
saw  the  voters  go  to  polling  place,  and  kept  list  of  voters.  Palhorn,  tlie 
colored  inspector,  swears  the  election  was  fairly  conducted  and  the 
tickets  voted  correctly  counted  and  returned.  McCurdy  and  Kobins, 
managers  of  the  election,  swear  the  same  thing.  On  this  testimony  the 
majority  set  aside  the  sworn  return  of  the  election  officers,  decide  that 
only  254  votes  were  cast,  and  that  of  this  number  Turpin  received  13 
and  McDuffie  received  241.  Neither  the  tickets  in  the  box  nor  the 
voters  were  examined.  The  undersigned  do  not  believe  that  the  official 
return  of  the  officers  at  this  precinct  should  be  set  aside. 

Canton.— "The  election  officers,  three  in  number,  under  oath,  returned 
that  the  number  of  votes  cast  at  this  precinct  was  234,  of  which  Turpin 
received  223  and  McDuffie  received  11.  One  witness,  a  colored  man, 
6wears  that  188  votes  were  cast  by  colored  men  for  McDuffie,  and  about 
twenty-five  Democrats  voted  there  that  day ;  witness  was  75  yards  from 
polls,  and  on  cross-examination  says  he  can  not  swear  the  voters  depos- 
ited their  ballots  or  that  McDuffie  received  more  than  1  vote  that  day. 
On  this  testimony  the  majority  set  aside  the  sworn  return  of  the  officers, 
and  count  this  precinct  Turpin  11,  McDuffie  188.  Neither  the  tickets  in 
the  box  nor  the  voters  were  examined.  The  undersigned  do  not  believe 
the  official  returns  of  the  managers  at  this  precinct  should  be  set  aside. 

Qeishend. — The  election  officers,  two  Democrats  and  one  Republican, 
under  oath,  returned  that  the  number  of  votes  cast  at  this  precinct  was 
205,  of  which  Turpin  received  190  and  McDuffie  received  15.  Two 
witnesses,  colored  men,  swore  that  they  distributed  192  McDuffie  tickets 
which  were  voted,  and  that  seven  white  men  voted  that  day.  On  this 
H.  Mis.  137 21 


322 


m'duffie  vs.  turpin. 


testimony  the  majority  set  aside  the  sworn  returu  of  the  election  officers, 
and  count  this  precinct  Turpin  9,  McDuffie  172.  Neither  the  tickets  uor 
the  voters  were  examined.  The  underjsigned  do  not  believe  the  official 
returns  of  the  managers  at  this  piecinct  should  be  set  aside. 

Counting  the  other  precincts  of  this  county  as  claimed  by  the  majority 
the  vote  of  the  county  will  stand  : 


Turpin. 

McDuffie. 

4,811 

607 

Deduct : 

SuowHill 

464 
385 
116 
200 

105 

Bethel 

15 

White  Hall 

26 

42 

1,106 

188 

3,646 

419 

Add  vote  as  connted  by  committee  from — 

Suow  Hill 

82 
57 
47 
42 

445 

Bethel    

343 

White  Hall 

84 

Boiling  Springs 

200 

228 

1,072 

M^ority  for  Turpin 

3,  874 
1,491 

1,491 

• 

1',  3S3 

PERRY  COUNTY. 


Hamburg. — The  election  officers,  two  white  Democrats  and  one  colored 
supervinoi',  under  oath  returnedthatthenumber  of  votes  cast  at  tlie  pre- 
cinct was  liOo,  of  which  Turpin  received  212  and  McDuffie  received  83.  J. 
C.  Hamer  testifies  that  he  saw  issued  25t5  McDuffie  tickets ;  that  he  saw 
the  voters  with  such  tickets  enter  the  door  of  the  voting  house  ;  tliat  the 
total  vote  that  day  was  257  colored  and  44  white  ;  that  one  colored  man 
he  knows  voted  the  Democratic  ticket.  Benjamin,  colored  Republican 
supervisor,  swears  that  everything  was  regular,  and  theie  was  no  fraud 
in  eouuting  rhe  vote.  Bell,  the  clerk,  swears  the  same  thing  substan- 
tially. On  this  testimony  the  majority  set  aside  the  sworn  return  of  the 
election  officers  and  count  the  vote  Turpin  lO,  McDuffie  25(J.  Neither 
the  tickets  nor  the  voters  were  examined.  The  undersigned  do  not  be- 
lieve the  sworn  return  of  this  piecinct  should  beset  aside. 

Marion. — Official  return  Turi)in  007.  McDuffie  8(5,  Wilson  (page 
232)  testifies  that  he  issued  583  McDuffie  tickets,  but  can  not  say  they 
were  voted.  Matt  Boyd  (i)age  299),  in  his  examination  in  chief,  says 
that  600  McDuffie  tickets  were  issued,  and  all  went  straight  to  the  polls 
and  voted  except  two.  He  does  not  say  they  voted  these  identical 
tickets;  on  cross  examination  (page  300) ;  he  said  he  would  not  swear 
they  did  vote  them.  There  vva^  a  house  that  concealed  them  from  view 
on  their  way  to  polls.  This  is  all  contestant's  evidence  as  to  the  number 
of  tickets  issued  and  voted.  Nick  Stephens  (page  226)  fir«t  swears  the 
poll-box  was  changed,  cross-examination  takes  this  back,  and  says  he 
knows  of  DO  change  of  box  or  fraudulent  eonnting  of  returns.  The 
contestee  took  the  testimony  of  James  Lockhead,  inspector  (page  439), 
and  J.  B.  Shivers  (page  443),  judge  of  i)robat«.    They  show  that  this 


m'duffie  vs.  tukpin. 


323 


election  was  as  fairly  conducted  as  possible ;  that  the  count  was  fair, 
correct,  and  legal ;  contradicts  Iltick  Stephens  in  almost  every  particular. 
On  this  testimony  the  majority  set  aside  the  return  and  count  the  vote, 
Tnrpiu  83,  M.  Duifie  583.  Neither  tlie  tickets  in  the  box  nor  the  voters 
were  examined.  The  undersigned  do  not  believe  the  sworn  returns 
shonkl  be  set  aside. 

Uniontoicn. — The  election  oflBcers,  two  Democrats  and  oneEepublican, 
under  oath  returned  that  the  vote  cast  was  201  for  Turpin  and  2  for 
McDuffie.  The  ofiicers  at  this  poll  were  regularly  appointed  by  the 
proper  officers,  opened  the  polls  at  the  proper  time  and  place,  and  re- 
ceived all  legal  votes  tendered.  The  officers  properly  certified  the  re- 
turn ;  they  were  properly  delivered  to  the  returning  board  for  county  and 
counted. 

Another  box  or  poll  was  opened  in  a  remote  part  of  the  town,  not 
the  usual  place  of  holding  elections,  bj^  persons  unauthorized  so  to  do, 
and  in  this  box  a  number  of  tickets  were  deposited,  one  witness  says 
953,  another  1,153,  all  for  McDuffie.  This  box  was  not  counted  by  the 
returning  board,  and  shoukl  not  have  been ;  there  is  no  pretense  that  the 
regular  return  was  not  correctly  counted  ;  the  majority  admit  this  sec- 
ond box  or  voting  place  was  not  authorized  by  any  law  or  statute  of  the 
State,  and  the  evidence  shows  that  there  was  no  mistake  or  misai)pre- 
hension  on  the  part  of  the  voters.  It  was  deliberately  done,  avowedly 
for  want  of  confidence  in  the  regularly  appointed  and  acting  officials  of 
the  election.  Under  no  view  of  the  law  or  facts  can  the  tickets  deposited 
in  this  box,  even  if  we  knew  how  many  there  were,  be  counted  for  either 
party. 

The  majority  count  this  precinct  Turpin,  210,  McDuffie,  955,  thus  in- 
cluding the  illegal  with  the  legal  return.  This  can  not  be  done,  and 
the  undersigned  believe  the  return  as  made  must  stand. 

Counting  the  other  precincts  as  claimed  by  the  majority  the  vote  of 
this  county  stands : 


Turpin. 


McDuffie. 


Retnrneil  vote 

luct  Perry  ville,  where  returns  were  not  signed 

Turpin'8  majority 


2,961 
142 


650 
41 


2,819 
609 


2,  >^10 


6U9 


jet  us  now  consider  the  action   of  the  majority  with  regard  to  the 
||te  in  Dallas  County. 

fartin's  Station. — As  to  this  precinct  the  two  witnesses,  Ned  Petway 
^  1  Acton  Mapping  (p.  154),  upon  whose  testimony  the  majority  of  the 
3mmittee  rely  to  change  the  result  of  the  election,  stood  from  120  to  150 
yards  away  from  the  polls,  upon  a  ])orch  of  a  store  on  the  same  side  of  the 
street.  One  other  witness,  Nathan  Stratton  (p.  153),  the  Republican 
United  States  supervisor,  was  in  the  polling-room,  and  admitted  that 
ho  knew  nothing  of  the  number  of  Republican  votes  cast  for  McDuffie 
except  as  he  had  been  told  by  the  other  two  witnesses.  He  testitie<l  in 
one  breath  that  such  number  was  324,  and  in  the  next  that  Mr.  Bam- 
berger, one  of  the  managers,  at  the  close  of  the  election  asserted  that 
there  were  355.  To  this  remark  he  said,  -'That  was  all  right."  Ned 
Petway  (p.  146)  swears  there  were  issued  by  him  to  colored  Eepubli- 


324  m'duffie  vs.  turpin. 

cans  324  tickets,  and  only  324  colored  men  voted  there  that  day.  Strat- 
ton  says  ten  of  the  colored  men  voted  the  Democratic  ticket.  Acton 
Mappius  swears  that  he  don't  know  whether  the  voters  whose  names  he 
placed  on  his  list  voted  the  ticket  they  got  from  him.  The  officers  of 
the  election  were  three  white  men  and  two  colored  men. 

Lewis  Bamberger  (p.  437)  testifies  that  he  was  an  inspector  at  said 
election  ;  that  there  were  cast  for  Turpin  383  votes  and  for  McDuffie2« ; 
that  these  votes  were  counted  and  returned  as  cast;  that  the  ballot- 
box  was  not  changed ;  that  the  count  of  the  vote  was  fair,  honest,  true, 
and  correct,  and  the  return  a  true  statement.  He  also  testified  that  a 
person  sitting  or  standing  on  the  porch  where  Petway  and  Maffin  were 
could  not  see  the  window  at  which  the  ballots  were  received,  because 
there  was  and  is  a  building  between  the  two  places. 

J.  M.  Anderson  (p.  560)  corroborates  Bamberger  as  to  the  above  state- 
ment, and  also  says  that  he  gave  out  a  good  many  Democratic  tickets 
to  colored  voters ;  names  three  that  he  recollects,  and  says  there  were 
fifteen  or  twenty  more. 

We  think  the  return  should  stand. 

Pence. — The  election  at  this  precinct  was  held  by  regularly  appointed 
sworn  officers,  among  whom  was  one  colored  man.  The  returns  were 
correctly  made  and  properly  certified.  The  majority  of  the  committee 
propose  to  set  it  aside  upon  the  testimony.  (R.  Sanders,  p.  152,  and  as 
R.  Isaac,  p.  340).  He  says  he  went  to  the  polls  to  issue  Republican 
tickets ;  had  250  of  them ;  that  Mr.  Turpin's  name  and  Mr.  McDuffie's 
name  were  on  them ;  that  he  had  issued  all  of  them  but  31 ;  that  he  issued 
them  to  colored  voters.  He  was  50  yards  from  voting  place.  Each  voter 
held  his  ticket  in  such  a  position  from  the  time  he  received  it  until  he  had 
voted  it  so  that  he  could  see  it.  There  was  not  anything  to  obstruct  his 
view,  and  that  he  knew  these  219  ballots  were  cast  forMcDuffie,  but  he 
did  not  know  who  were  the  officers  of  the  election.  This  fair  statement 
of  this  man's  evidence  is  sufficient  to  reduce  to  absurdity  the  conclusion 
of  the  committee  to  count  219  for  McDuffie  and  8  for  Turpin  when  only 
208  votes  were  cast  at  that  poll  that  day. 

The  contestee  took  the  deposition  of  William  Bell  (p.  646),  who  was 
registrar,  and  in  no  way  connected  with  the  conduct  of  election.  He 
testifies  that  Richmond  Isaac  could  not  see  the  voters  deposit  their  bal- 
lots. He  (Isaac)  was  on  one  side  the  house  while  the  polling  place  was 
on  another,  and  his  vision  would  have  to  go  round  the  corner  and  turn 
at  right  angle  to  see  the  polls. 

This  was  all  the  testimony  taken  by  contestant  and  contestee  in  rela- 
tion to  this  precinct  until  the  testimony  in  rebuttal  was  taken  by  con- 
testant, when  he  examined  O.  D.  Martin  (p.  769),  and  by  him  attempts 
to  prove  that  the  ballots  were  not  counted  till  next  day ;  but  he  says 
the  box  was  kept  by  the  inspectors,  or  one  of  them,  all  the  time.  But 
no  witnesses  could  be  examined,  under  the  law,  by  contestee,  and  the 
contestant  at  this  period  could  only  take  testimony  in  rebuttal.  As 
nothing  had  been  said  about  it  before,  this  could  not  be  in  rebuttal. 
The  committee  can  not  consider  this  testimony.  If  considered,  it  only 
proves  that  the  strict  letter  of  the  law  directing  an  immediate  count 
was  not  complied  with,  but  no  effort  is  made  to  show  that  the  inspectors 
tampered  with  this  box  or  manipulated  the  returns,  which  must  stand 
as  the  true  returns  of  this  precinct. 

Liberty  Hill. — No  election  was  held  at  this  precinct.  There  is  testi- 
mony tending  to  show  that  five  or  six  negroes  pretended  to  hold  one, 
but  they  never  pretended  to  make  any  return  of  the    same  to  the 


m'duffie  vs.  turpin.  325 

sheriff,  and  the  witness  Turner  (p.  161)  did  not  know  how  many  votes 
were  cast  nor  how  many  tickets  he  issued.  After  the  time  for  the 
contestee  to  take  evidence  had  expired,  contestant  called  a  witness, 
Thomas,  who  claimed  to  have  been  a  Federal  supervisor  at  said  election 
and  to  have  made  a  return  to  the  chief  supervisor.  It  is  upon  this 
alleged  return  the  majority  of  the  committee  act,  yet  this  return  was 
not  produced  in  evidence;  the  fair  inference  is  that  it  could  not  be,  or 
rather  that  none  such  was  ever  made.  Thomas  could  not  remember  the 
uame  of  any  other  man  on  the  ticket,  which  he  swore  he  read  over 
197  times  in  tallying  the  vote,  and  could  only  remember  McDufiQe's  be- 
cause he  had  received  newspapers  horn  him  since  the  election  and  was 
subpoenaed  to  testify  for  him. 

Burnsville  precinct. — Here  contestant  claimed  435  votes  and  admitted 
60  for  Turpin.  The  returns  give  Turpin  475  and  McDuflie  22.  The 
majority  of  the  committee  give  Turpin  60  and  McDuf3Qe  288. 

The  testimony  shows  that  some  Republicans  claimed  to  have  stolen 
a  ballot-box  from  a  room  adjoining  the  polling- place.  No  witness 
who  saw  such  box  is  called,  nor  is  there  any  evidence  to  show  whether, 
in  fact,  the  stolen  article  was  a  ballot-box  or  a  hen-coop.  We  have  the 
usual  story  of  two  colored  men,  one  issuing  tickets  and  the  other  keep- 
ing a  list  of  the  names,  and  two  others  watching  the  voters  to  see  that 
the  tickets  issued  were  voted;  but  the  other  watchers  are  not  put  on 
the  witness  stand.  The  list-keeper  and  issuer  are  shown  to  have  been 
where  they  ".ould  not  see  the  polling;  the  election  was  legally  con- 
ducted by  officers  appointed  according  to  law ;  and  one  colored  Repub- 
lican inspector  and  the  colored  Republican  United  States  supervisor 
(page  564)  both  testify  to  their  close  and  vigilant  attention  to  the  con- 
duct of  the  election  and  to  the  truth  and  correctness  of  the  count  and 
returns.  These  witnesses  are  corroborated  by  the  two  white  inspectors 
(Mason,  p.  564;  Berry,  p.  565).  But  the  majority  of  the  committee  dis- 
regard these  facts,  and  count  as  above  mentioned  for  McDufBe. 

Union. — To  set  this  election  aside  and  count  the  votes  for  McDuffie 
which  were  cast  for  Turpin,  the  majority  of  the  committee  rely  on  the 
testimony  of  Hector  Jones  and  Oscar  Moseley.  The  former  claims  to 
have  kept  a  list  of  the  voters  to  whom  he  issued  Republican  tickets, 
and  also  of  the  white  Democratic  voters,  that  day,  and  to  have  had 
men  to  watch  that  the  colored  men  voted  the  ticket  he  gave  them.  He 
admits  that  there  were  men  between  him  and  the  polls,  but  says  there 
were  not  more  than  ten  at  a  time.  He  also  watched  to  see  that  none 
changed  their  tickets,  but  does  not  know  how  any  except  himself  voted. 
The  men  he  had  stationed  to  see  that  the  voters  did  not  change  their 
tickets  were  not  called  as  witnesses,  except  Oscar  Moseley,  who  testi- 
fies that  the  voters  could  have  changed  their  ballots  without  his  seeing 
them,  and  that  he  did  not  see  any  voter  at  that  election  deposit  his 
ballot  but  himself. 

Valley  Greek. — The  majority  of  the  committee  changes  the  result  of 
the  election  at  this  precinct,  where  401  votes  were  cast  for  Turpin  and 
^d  for  McDuffie,  so  as  to  give  the  latter  382  votes  and  the  former  only 
This  is  done  upon  the  testimony  of  two  witnesses  as  to  a  count 
liey  made,  in  the  face  of  the  fact  that  there  was  a  Republican  who 
ould  read  on  the  board  of  election  officers,  and  the  conduct  and  action 
f  those  officers  was  sustained  by  the  testimony  of  two  witnesses,  one 
of  whom  was  a  leading  and  influential  life-long  Republican. 

Pine  Flat. — Three  election  officers  certify  under  oath  that  Turpin  re- 
ceived 249  votes  and  McDuffie  received  80  votes.    The  colored  inspector 


326 


m'dupfie  vs.  turpin. 


sustains  under  oath  the  correctness  of  the  count,  and  there  is  no  satis- 
factory evidiMice  impeaching  the  correctness  of  the  return. 

Vernon. — We  find  that  the  return  from  this  precinct  has  not  been 
successfullj'  assailed. 

Dublin. — We  find  that  the  return  from  this  precinct  has  not  been  suc- 
cessfully assailed. 

Elm  Bluff. — We  find  the  return  from  this  precinct  has  not  been  suc- 
cessfully assailed. 

River. — We  find  the  return  from  this  precinct  has  not  been  success- 
fully assailed. 

Wood  Laicn. — Return  correct. 

Marion  Junction. — lieturn  correct. 

Old  Town. — Return  correct. 

Counting  the  other  precincts  as  claimed  by  the  majority  (except 
Boykins  which  does  not  enter  into  ther  eturu),  the  vote  of  this  county 
stands  as  follows : 


Turpiu. 

McDuffia 

Returned  vote 

5,705 

1,706 

Deduct: 

Mitchell's  Mill 

30 
23S 

0 

Brown's . 

90 

205 
5, 440 

90 
1,616 

Add: 

Mitchell's  Mill 

0 
16 
0 
0 
0 

345 

249 

Smiley* ..... . 

86 

Chillatcbe*  

144 

Caxlowville''' 

101 

16 

925 

5,456 
2,541 

2,541 

2,916 

*Not  counted  by  board. 
RECAPrrULATION. 


Countv. 


Lowndes  County 

Hale  County 

Wilcox  County 

Perry  County 

Dallas  County 

Total. 

Turpin's  majority 


Turpin. 


1,842 
2,867 
3,874 
2,819 
5,496 


McDuffie. 


1,627 
1,  526 
1,491 
609 
2,541 


7,794 


It  will  thus  be  seen  that  conceding  to  the  contestant  all  that  he  can 
in  reason  and  good  conscience  claim,  there  is  still  a  majority  against 
him  of  more  than  9,000.  The  majority  arrive  at  quite  a  diflerent  c(mclu- 
sion,  but  in  doing  so  we  respectfully  submit — an  examination  of  the  rec- 
ord will  disclose — that  they  have  disregarded  well-established  principles 
of  law  and  violated  rules  of  evidence,  the  maintenance  of  which  is  es- 


m''duffie  vs.  TURPm. 


327 


sential  to  the  ascertainment  of  tbe  truth.    We  submit  the  following 
resolutions  in  lieu  of  those  offered  by  the  majority : 

Resolved,  That  John  V.  McDuffie  was  not  elected  a  Representative 
in  the  Fifty-first  Congress  from  the  Fourth  Congressional  district  of 
Alabama,  and  is  not  entitled  to  a  seat  therein. 

Eesolved,  That  Louis  W.  Turpin  was  «iuly  elected  a  Representative 
in  the  Fifty-first  Congress  from  the  Fourth  district  of  Alabama,  and  is 
entitled  to  retain  his  seat. 

Charles  F.  Crisp. 

Charles  T.  O'Ferrall. 

J.  H.  Uuthwaite. 

Levi  Maish. 

L.  W.  Moore. 

E.  P.  C.  Wilson. 


JAMES  E.  CHALMERS  vs.  JAMES  B.  MOEGAIsi. 

SECOND  MISSISSIPPI. 


Contestant  charged  intimidation  of  voters,  corrupt  manipulation  of 
registration,  stuffing  and  stealing  of  ballot  boxes,  and  illegal  voting. 
The  committee  find  that  fraud  in  all  these  forms  existed,  but  as  the 
number  of  votes  affected  thereby  was  not  sufficient  to  overcome  the 
majority  returned,  the  contestee  is  still  entitled  to  the  seat.  Mr.  Houk 
files  a  minority  report,  contending  that  a  conspiracy  is  proved  which 
overthrows  the  prima  facie  of  the  returns.  (See  minority  report,  p. 
349.)  The  resolutions  presented  by  the  committee  were  adopted  August 
18,  1890,  by  a  vote  of  115  to  15  (on  division,  the  Speaker  "  counting  a 
quorum").  The  debate  will  be  found  on  pages  8758  to  8767  of  the 
Eecord. 

(1)  Presumption  of  correctness  of  returns. 

Evidence  as  to  certain  boxes  can  not  affect  others  which  are  not 
assailed.  329 


HEPORT. 


June  20,  1890. — Mr.  Dalzell,  from  the  Committee  on  Elections,  sub- 
mitted the  following  report: 

The  Committee  on  Elections,  having  had  under  consideration  the  con- 
tested-election case  of  James  Ei.  Chalmers,  contestant,  v.  James  B.  Mor- 
gan, coutestee,  from  the  Second  Congressional  district  of  Mississippi, 
reports  that  it  is  not  proven  by  the  record  that  the  contestant  was 
elected,  nor  that  the  contestee  was  not ;  but  it  is  proven  that  the  elec- 
tion in  question  was  characterized  by  frauds  disgraceful  to  our  civiliza- 
tion, and  such  as  to  call  for  severe  animadversion  on  the  part  of  every 
honest  man. 

The  election  in  question  was  held  on  the  6th  day  of  November,  1888. 
The  contestant  was  the  Republican  nominee  for  Congress  and  the  con- 
testee the  Democratic.  The  latter  was  returned  as  elected  by  a  plu- 
rality of  8,161  votes,  a  plurality  at  least  four  times  as  great  as  his  legal 
plurality. 

The  Second  Congressional  district  of  Mississippi  consists  of  nine  coun- 
ties, Benton,  DeSoto,  La  Fayette,  Marshall,  Panola,  Tallahatchie,  Tate, 
Tippah,  and  Union.  No  question  is  made  as  to  the  honesty  of  the 
election  in  the  two  last  named,  and  no  reason  has  been  shown  why  the 
honest  voters  thereof  should  be  disfranchised. 

With  respect  to  the  other  seven  counties,  there  is  a  number  of  boxes 
as  to  which  no  testimony  was  taken,  but  it  may  safely  be  affirmed  that 
iu  not  one  of  these  counties,  taken  as  a  whole,  was  the  election  an 
honest  one.  Fraud  in  various  forms,  including  intimidation  of  voters, 
corrupt  manipulation  of  registration,  stuffing  and  stealing  of  ballot- 
boxes,  and  illegal  voting,  finds  ample  illustration  in  all  of  them. 

If  we  may  judge  from  the  evidence,  this  state  of  things  is  to  be  ac- 
counted for  by  the  existence,  in  that  district,  of  a  different  standard  of 
morals  from  that  which  is  generally  accepted  as  the  correct  one  by 
communities  recognized  as  moral. 

Mr.  A.  S.  Buchanan,  a  lawyer,  a  resident  of  this  district,  who  "  at- 
tends the  circuit  and  chancery  courts  in  De  Soto  and  Tunica  Counties 
regularly,"  and  who  also  practices  in  Memphis,  Tenn.,  was  one  of  the 
coutestee's  counsel  and  also  a  witness  for  him.  In  the  course  of  his 
cross-examination,  he  testified  thus  (Record,  p.  837) : 

Q.  As  a  Mississippi  Democrat,  which  do  yon  think  preferable,  the  triumph  of  Re- 
publicanism or  the  suppression  or  partial  suppression  of  negro  suffrage  ? — A.  Well, 
as  a  Miss.  Democrat,  I  would  say  that  I  regard  either  of  those  alternatives  as  a  very 
unfortunate  one.     1  think  that  anything  like  wholesale  ballot-box  staffing  or  fraud 

331 


332  CHALMERS   VS.    MORGAN. 

in  elections  is  almost,  if  not  quite,  as  greatly  to  be  deplored  as  Republican  rule  would 
be.    I  bardly  know  which  of  the  two  would  be  most  to  be  deplored. 

Q.  Then,  don't  you  think  that  a  little  retail  ballot-box  stufiSng  here  and  there  in 
Miss,  preferable  to  Republicanism? — A.  If,  as  a  tax-payer  in  Miss.,  the  two  alterna- 
tives were  presented  lo  me  of  being  ruined  by  taxation  or  having  some  other  fellow 
besmirch  his  conscience  by  ballot-box  stuflSng,  I  would  not  interfere  to  prevent  the 
success  of  the  Democratic  party  by  that  little  game  on  the  retail  plain.  But,  if  I  had 
to  take  the  oath  of  office  and  perjure  myself  in  order  to  procure  the  triumph  of  the 
Democratic  party,  I'd  let  the  party  go  to  the  devil. 

This  is  Democratic  testimony. 

On  the  other  hand,  Henry  Wood,  an  old,  respectable  colored  man  and 
a  Republican,  who  has  labored  for  his  party  since  he  has  been  free,  and 
has  lived  on  the  same  place,  near  Olive  Branch,  in  De  Soto  County,  for 
forty  years,  says,  in  speaking  of  the  men  who  hold  elections : 

No  moneyed  man  ain't  never  around  there;  they  get  a  few  bull-dozers  to  stand 
around  there;  a  gentleman  never  does  nothing  dirty,  but  he  puts  out  his  money  and 
gets  these  dirty-handed  men  to  handle  dirt  for  him ;  he  never  does  nothing  dirty  him- 
self.    (Record,  pp.  553  and  554.) 

The  facts  proven  with  respect  to  the  election  are  just  such  as  might 
be  expected  from  the  testimony  of  these  two  witnesses,  except  that  they 
show  that  Mr.  Buchanan  was  understating  the  situation  when  he  spoke 
of  "  the  little  game"  being  carried  on  "  on  the  retail  plan." 

That  these  two  witnesses  were  simply  making  a  plain  statement  in 
accordance  with  existing  public  sentiment  in  the  section  of  Mississippi 
iu  which  the  Second  Congressional  district  is,  will  further  be  apparent 
by  reference  to  an  editorial  article  which  appeared  November  15,  1888, 
in  The  Ledger,  a  Democratic  paper,  published  in  Tupelo,  Miss.,  which 
article  was  in  evidence  as  an  exhibit  to  the  deposition  of  W.  H.  Gibbs, 
one  of  contestant's  witnesses.    It  is  as  follows: 

THB  RACE  PROBLEM. 

The  result  of  the  late  Presidential  election  iu  the  South  shows  very  plainly  that  the 
negroes  are  Republicans  only  through  prejudice  and  hatred  toward  the  white  people 
of  this  section,  who  are  nearly  all  Democrats.  They  have  proven  conclusively  in  this 
election  that  they  are  actuated  solely  by  a  desire  to  antagonize  the  white  people — 
the  tax-paying  Democrats — among  whom  they  unfortunately  live.  Their  old  and 
flimsy  pretext  heretofore  for  being  Republicans — that  they  were  fearful  that  they 
would  be  put  back  into  slavery — was  completely  exploded  by  the  present  Democratic 
administration,  which  has  been  more  friendly  to  the  negro's  interests  than  the  Repub- 
licans ever  were. 

But  with  all  of  this,  the  negroes  in  this  State  turned  a  deaf  ear  to  their  best  interests 
and  voted  for  Harrison  for  President,  for  the  sole  and  express  purpose  of  being  in 
opposition  to  the  white  people  of  the  South. 

When  the  race  issue  has  reached  this  stage  it  is  due  time  to  call  a  halt.  The 
negroes  must  remember  that  the  white  people — the  Democrats — are  taxed  heavily  to 
provide  them  with  good  schools,  to  educate  their  children ;  they  must  remember  that 
when  in  any  kind  of  need  they  go  direct  to  Democrats  every  time  for  help — and  rarely 
fail  to  secure  assistance — and  now  for  them  to  persistently  vote  against  us  is  simply 
going  a  little  too  far.  They  must  consider  that  the  Democrats  are  now  running  the 
governmental  aifairs  of  Mississippi  and  the  South,  and  will  continue  to  do  so  as  long 
as  they  have  a  spark  of  manhood  left  within  them,  and  it  is  astonishing  to  see  the 
negroes  stubbornly  and  vainly  fighting  the  party  and  people  that  make  the  laws 
under  which  they  live  and  are  governed. 

There  are  a  few  good  and  true  negro  Democrats  in  Mississippi,  bntalarge  majority 
of  them  are  insolent,  turbulent  Republicans. 

They  are  actuated  firmly  by  prejudice  against  the  white  people,  and  the  time  has 
arrived  for  us  to  shut  down  upon  them  in  some  manner.    What  shall  it  be? 

The  problem  thus  presented,  "How  to  shut  down  upon  insolent,  tur- 
bulent Republicans?"  appears  to  have  been  effectively  solved  in  the 
Second  Congressional  district  of  Mississippi.  Several  methods  were 
put  in  practice,  some  of  which  we  propose  to  describe. 


I 


CHALMERS    VS.   MORGAN.  333 

One  method  found  to  be  quite  eflfective  was  by  the  organization  of 
^''Unterrified  and  determined  Democrats"  into  military  companies  for 
campaign  service.  This  was  the  method  followed  in  Hernando,  De  Soto 
County,  the  home  of  the  contestee.  We  append  an  abstract  from  tho 
De  Soto  Times  of  Thursdaj',  October  11,  1888,  as  found  on  page  238  of 
the  record : 

DE  SOTO  TIMES,  THURSDAY,  OCTOBER  11,  1888. 

jPublished  every  Thursday.    W.  S.  Slado,  editor  and  proprietor.     Subscr-Titlnu  ratea:  One  copy  1  year, 
$1.00;  one  copy  6  months,  60  cents;  one  copy  3  months*  "0  cents.  J 

attention!    attention! 

Heknando,  Miss.,  Oct.  8. 1888. 

A  large  and  enthnsiastic  crowd  of  "  unterrified"  and  determined  Democrats  assem- 
bled at  the  court-hoase  last  nigbt  for  the  purpose  of  reorganizing  the  "  Old  Guard," 
the  "De  Soto  Blues." 

After  a  few  preliminaries  a  call  for  volunteers  was  made,  when  54  present  enlisted 
their  names  as  members  of  the  "De  Soto  Blues."  After  the  enlistments  had  taken 
place  an  election  for  officers  was  had  with  the  following  result,  to  wit : 

D.  M.  Slocum,  captain.  J.  C.  Gillespie,  3rd  se'gt. 

T.  W.  White,  jr.,  Ist  lieu't.  C.  C.  Kirkland,  4th  se'gt. 

Geo.  Wood,  2d  lieu't.  J.  C.  Ballard,  1st  corp'l. 

J.  H.  Johnson,  3rd  lieu't.  Oliver  Dockery,  2d  corp'l. 

J.  W.  Lauderdale,  ord.  se'gt.  Harry  Green,  3rd  corp'l. 

Stephen  Humphreys,  2d  se'gt.  W.  H.  Meriwether,  4th  corp'l.. 

The  chair,  upon  motion,  appointed  a  committee  of  five,  to  wit,  W.  S.  Weissinger, 
E.  B.  Gwyn,  George  Wood,  J.  H.  Johnston,  and  B.  Goodman,  to  receive  the  names  of 
those  desiriug  to  enlist  in  said  company.  All  recruits  will  therefore  report  to  either 
of  these  gentlemen. 

Messrs.  Payne,  Gwyn,  and  C.Jones  were  appointed  to  select  a  uuiform  and  report 
their  selection  to  the  company  at  its  meeting  at  the  court-house  on  Tuesday  night, 
9th  inst.,  at  7^  o'clock. 

Let  all  attend. 

D.  M.  Slocumb,  FresH. 

E.  W.  Smith,  Stc\j. 

According  to  the  testimony  of  D.  M.  Slocumb,  postmaster  at  Her- 
nando Court  House,  and  captain  of  the  "Old  G-uard"  of  ^'' unterrified 
and  determined  Democrats,"  this  company  was  originally  organized  in 
an  election  year,  1876,  reorganized  in  1884.  another  election  year,  and  re- 
organized again  in  1888,  another  election  year.  In  answer  to  a  question 
as  to  how  it  happened  "that  the  reorganization  was  just  a  month  or  so 
prior  to  the  election  ?  "  he  explained  (Record,  p.  664): 

Before  elections  we  have  no  excitements  here  or  disturbances.  They  are  more  likely 
to  occur  in  campaigns,  and,  as  before  stated,  to  prevent  disturbances  or  violations  of 
law,  riots,  etc.,  and  reorganizations  were  made  to  fill  up  the  deficiencies  and  to  make 
it  effective.    *    *     *  , 

How  " effective "  such  companies  a:e  in  preventing  "disturbances, 
violations  of  law,  etc.,"  will  be  made  clear  from  the  further  testimony 
of  this  same  witness,  wlio  tells  (Record,  pp.  664-r;)  of  a  miscellaneous 
shooting  into  houses  and  stores  in  Hernando  on  the  night  before  the 
election.  He  heard  the  shooting,  saw  the  bullet-holes  in  the  buildings 
next  morning,  but  when  asked 

Did  you  with  your  company,  or  did  any  officer  in  Hernando,  attempt  to  stop  the 
shooting  that  was  going  on  here  the  night  before  the  election  ?  If  so,  state  who  made 
the  effort,  and  all  about  it. 

He  made  answer : 
I  did  not,  and  I  don't  know  that  any  officer  of  the  company  did. 


334  CHALMERS    VS.    MORGAN. 

Further  proof  of  the  effectiveness  of  an  "  Old  Guard  "  of  unterrifiedy 
(hardiy,  however,  corroborative  of  its  gallant  captain's  evidence),  will 
be  found  in  the  tetstimony  of  Sowell  Newsom,  an  old  gentleman  seventy- 
five  years  of  age,  who  spoke  as  follows  (Record,  p.  103(5) : 

Qu.  10th.  Did  you  vote  in  the  last  November  election  ? — Ans.  I  did  not. 

Qu.  llth.  Wbj'  did  you  not  vote  ? — Ans.  Judge  Morgan  had  been  my  attorney  and 
I  had  been  friendly  with  him  and  I  wished  hira  well,  but  I  couldn't  vote  for  him ;  the 
shooting  was  so  heavy  Monday  night  before  the  election  and  the  next  day  a  good 
deal,  I  was  afraid  to  go  out  the  next  day  because  some  stray  ball  might  hit  me.  I 
intended  to  vote  late  in  the  evening  when  the  time  I  thought  it  would  be  most  quiet. 
I  intended  to  vote  for  Chalmers  that  evening,  and  there  was  a  hard  rain  that  even- 
ing. My  calculation  was  that  the  Republican  vote  would  be  throwedout  as  usual  and 
it  would  be  no  good,  aud  in  pursuance  of  my  wife's  entreaties  I  didn't  go  out ;  she  was 
afraid  I  might  get  hit  with  a  stray  ball. 

Qu.  llth.  Please  tell  what  you  know  about  the  shooting  in  Hernando  the  night 
befoie  the  election. — Ans.  I  think  the  shooting  commenced  on  Monday  night  before 
the  election  aud  continued  oft"  and  on  the  wholj  night;  I  heard  it,  and  I  got  news 
that  they  were  shooting  into  my  store  and  on  the  negro  houses  all  around;  done  by 
that  regular  organized  company  there  ;  I  didn't  see  any  shooting,  but  there  were  men 
there  who  saw  aud  knew  who  was  shooting.  I  was  told  by  Austin  Beil  aud  Perry 
Martin  they  saw  the  men  and  knew  who  they  were  shooting. 

Qu.  l-2th.  Did  you  know  ofthe  town  marshal  of  Hernando  or  of  the  mayor  making 
any  efforts  to  put  a  stop  to  this  shooting  ? — Ans.  I  was  told  by  Bell  and  Martin  that 
the  mayor  and  the  marshal  was  with  them  while  they  were  shooting  at  night.  I 
saw  Mr.  Woods,  the  marshal,  after  that  night  and  talked  to  him  about  it ;  he  said 
he  didn't  do  any  of  the  shooting,  but  admitted  to  me  he  was  there.  Says  I  why  didn't 
you  stop  it ;  he  said  he  couldn't  do  it.  I  stated  to  him  that  if  we  had  no  protection 
ofthe  officers  ofthe  law  we  were  in  a  bad  fix. 

Qu.  1  .th.  Youspeakof  the  military  companies  in  Hernando.  What  sort  of  uniforms 
did  that  company  wear;  did  they  have  military  caps  and  military  suitst-Ans.  I 
don't  think  there  wa«  any  military  company  there,  but  just  political ;  they  drilled  at 
moonshine.  Mr.  Newberry  stiid  he  was  out  there  and  saw  them  drilling.  They  wore 
a  kind  of  a  hat  that  nobody  else  did'nt  wear — a  kind  of  a  white  hat  they  called  the 
campaign  hat. 

This  heroic  method  of  "preventing  disturbances  and  violations  of 
law,  etc.,"  in  campaign  time  was  not  confined  to  De  Soto  County.  It 
flourished  elsewhere  in  the  district 

J.  E.  Drake,  a  United  States  supervisor,  testified  (Record,  p.  445) : 

Q.  What  box  do  you  vote  at  ? — A.  The  Sherman  box,  in  Tallahatchie  County. 

Q.  lathe  majority  of  voters  at  that  box  colored  or  white? — A.  The  majority  is 
wbite,  I  think,  but  we  have  very  near  as  many  colored  as  white. 

Q.  Was  there  any  shooting  into  the  voters  at  that  box  on  the  last  election  T — ^A. 
Yes,  sir. 

Q.  What  position  did  you  occuy  there  that  day? — A.  U.  S.  supervisor. 

Q.  Please  explain  the  shooting  you  speak  of.  — A.  Well,  there  was  about  20  or  30 
shots.  The  men  were  on  a  blufla  little  above  the  house,  and  the  voters  were  about 
30  or  40  feet  from  the  house,  and  the  shooting  was  done  in  the  direction  of  the  men, 
and  one  of  the  balls  fell  right  in  front  of  one  of  the  voters. 

Q.  Were  they  white  or  colored  men  who  did  i  he  shooting  T— A.  They  were  white 
men ;  hid  back  on  the  bluff'. 

Q.  How  many  times  did  they  shoot — different  times? — A.  Twenty  or  30  different 
times  they  shot. 

In  Abbeville,  La  Fayette  County,  the  shooting  was  postponed  until 
the  polls  had  closed,  and  seems  to  have  had  some  bearing  upon  the 
count. 

We  quote  from  the  testimony  of  J.  W.  Hines,  a  United  States  super- 
visor (Record,  pp.  624-5) : 

Q.  Where  do  you  live,  Mr.  Hines? — A.  Live  in  La  Fayette  County,  Abbey ville.  Miss 
Q.  Did  you  vote  at  the  Abbeyville  box  at  the  last  Nov.  election  ? — A.  Yes,  sir. 
Q.  What  position  did  you  hold  at  that  election  ? — A.  I  was  U.  S.  supervisor. 
Q.  Was  there  any  disturbance  at  the  election  at  Abbeyville  or  not  ? — A.  Yes,  sir. 
Q.  Please  begin  now  and  state  what  occurred  that  day. — A.  Everything  seemed  to 
meve  off  smootnly  until  after  we  closed  the  polls ;  I  don't  know,  suppose  it  was  one 


CHALMERS   VS.    MOEGAN.  335 

or  two  hours ;  we  were  slow  counting ;  there  was  some  firing  of  pistols  or  guns  near 
the  place  where  we  were  holding  the  election.  I  asked  if  the  oflBcers  of  the  polls 
looked  into  the  matter  and  arrested  the  parties;  I  don't  know  whether  they  did  or 
not.  A  few  minutes  after  there  were  3  or  4  shots  fired  through  the  window  and  the 
judge  and  cl.rk  were  seemed  to  be  terribly  frightened.  I  must  confess  for  a  moment 
I  was  frightened  myself.  I  never  hid  under  no  book  or  anything.  I  said  it  was  a 
premeditated  thing,  and  they  refused  to  count  there;  said  they  were  afraid  some  of 
us  would  get  shot,  and  they  said  let  us  move  to  some  other  place,  and  I  said  all  right, 
and  they  moved  to  A.  A.  Huston  &  Sous'  store,  and  there  we  finished  the  counting. 
That  was  the  only  disturbance,  and  I  have  a  book  here  I  would  like  to  read  and  let 
it  go  along  with  my  statement. 

Q.  Did  you  keep  a  list  of  the  men  who  offered  their  votes  there  that  day  T — A.  Yes, 
six. 

Q.  How  many  offered  to  vote  that  day? — A.  268. 

Q.  Were  any  of  those  voters  refused,  and  if  so,  how  many  ? — A.  Well,  there  was  40 
colored  votes  refused  and  3  white  votes. 

Q.  Do  you  know  whether  any  of  the  colored  men  whose  votes  were  refused  were 
registered  and  duly  qualified  electors?— A.  I  do,  sir;  I  went  to  Oxford  myself  a  few 
days  before  the  election.  I  think  It  was  a  week ;  can't  say  exactly  how  long.  I  told 
the  colored  people  of  that  country  that  my  beat  and  College  Hill  beat  to  meet  me  at 
Oxford  and  I  would  go  and  see  that  they  were  properly  registered.  I  think  there 
was  18  that  appeared  on  my  book  here  that  was  there,  and  I  saw  them  register,  that 
was  scratched,  that  came  up  to  vote,  and  their  names  were  scratched. 

Q.  Are  you  positive  that  there  were  only  216  votes  polled  there  that  day? — A.  lam. 

Q.  How  many  votes  were  counted  out  when  the  count  was  finished  ? — A.  247. 

Q.  Did  you  or  not,  on  the  list  you  kept,  designate  by  any  mark  the  names  of  those 
who  were  refused  the  privilege  of  voting  ? — A.  Yes,  sir  ;  when  they  appeared  scratched 
on  rhe  book,  or  when  they  hadn't  had  a  transfer  on  our  beat,  I  marked  it  all  the  way 
through,  Wm.  Long,  colored,  scratched,  and  so  on  ;  you  will  find  it  all  the  way  through 
there  so  on  through  scratched  ;  you  will  find  it  all  the  way  through  there. 

Q.  I  find  in  this  book  a  statement  written  out  substantially  the  same  as  that  which 
you  have  just  made  to  which  your  name  is  signed ;  state  whether  you  write  and  signed 
that  statement. — A.  I  did, 

Q.  I  ask  that  that  book  be  marked  Exhibit  A,  and  be  made  a  part  of  the  witness' 
deposition. 

Q.  Will  you  state  where,  in  the  excitement  caused  by  the  firing  of  the  shots  on  the 
room  and  the  consequent  moving  to  another  place,  was  there  any  opportunity  for 
putting  other  tickets  in  the  l>allot-box  other  than  those  voted? — A.  Well,  yes,  sir; 
let  me  go  behind  the  firing  there  was  made  that  day  been  handed  in  the  Democratic 
judges,  and  I  supposing  something,  and  I  was  holding  the  thing  down  pretty  close,  I 
wouldn't  leave  the  box ;  but  it  came  in  a  diflferent  way  than  what  I  expected.  There 
was  no  shelter  on  the  outside  by  which  bystanders  could  protect  themselves  from  the 
rain,  and  we  had  the  door  closed,  and  they  ran  against  the  door,  and  there  was  10  or 
15  which  crowded  around  the  table,and  there  were  parties  waiting  and  knowing  that 
those  shots  were  going  to  be  fired,  I  think,  and  the  box  were  turned  over,  them  that 
had  been  counted  and  those  that  were  on  the  floor;  they  were  all  thrown  together, 
therefore  we  couldn't;  I  remarked,  "I  say,  judge,  this  is  an  illegal  thing;  we  have 
got  the  votes  mixed."  There  were  those  that  had  been  counted,  and  those  that  had 
not  been  conntei ,  and  we  went  up  to  A.  A.  Houston  &  Sons  to  finish  the  count,  and 
I  don't  think  there  was  any  opportunity  while  moving  to  stuff  the  box;  if  there  was 
anything  done  it  was  done  when  the  box  was  turned  over. 

At  Oxford  the  weapon  of  peaceful  warfare  was  a  cannon,  which 
seems  to  have  been  used  for  the  purposes  of  warning  in  advance  against 
"  disturbances,  violations  of  law,  riot,  etc." 

M.  A.  Montgomery,  a  lawyer,  residing  in  Oxford,  says  (Record, 
p.  593) : 

Q.  Did  you  hear  any  cannon  fired  near  the  i)olls  before  the  election  and  during  the 
election  ;  if  so,  state  all  about  that  as  near  as  you  can  ? — A.  On  the  evening  before  the 
election  a  cannon  stood  on  South  street,  some  distance  south  of  the  court  house  and 
where  rhe  boxes  were  located — ballot-boxes.     The  cannon  was  there. 

Q.  Was  there  any  firing  done  there  ? — A.  The  cannon  was  fired  on  the  evening  before 
the  election  repeatedly.  The  cannon  was  removed  to  the  southeast,  below  the  stores, 
at  the  southeast  of  the  court-house,  because,  as  lam  informed,  the  firingof  the  cannon 
atthe  place  it  was  before  had  jarred  the  business  houses  and  broken  some  window-lights 
out.  Early  on  the  morning  of  the  election  the  firing  was  heard,  and  continued  at  in- 
tervals until  much  later  in  the  day. 


336  CHALMERS   VS.   MORGAN. 

Q.  Did  yon  ever  Bee  any  printed  statements  from  Congressman  John  M.  Allen  as  to 
■why  the  Democrats  had  fired  cannon  on  election  day ;  if  so,  please  state  what  it  was  ? — 
A.  I  have  heard  several  persons  say  that  they  had  seen  a  printed  statement  from  Mr. 
Allen  to  the  effect  that  the  cannon  is  tired  on  mornings  of  election  in  order  to  give 
warning  to  the  niggers  that  there  is  going  to  he  a  fair  election. 

Not  to  indulge  in  further  commeut  on  this  subject,  it  will  be  manifest 
to  any  fair-minded  man  who  will  read  the  testimony  in  this  case,  that 
measures  were  resorted  to  in  many  places  in  the  Second  Congressional 
district  of  Mississippi  at  the  election  in  question,  to  terrorize  the  colored 
voters  and  to  keep  them  from  the  polls,  and  the  record  abounds  in  proof 
that  many  of  the  colored  men  were  prevented  by  fear  from  attempting 
to  exercise  their  right  of  suffrage.  Nor  is  evidence  wanting  that  this 
is  a  favorite  method  of  long  standing  of  "shutting  down  upon  "the 
liepublican  voters  of  this  district,  wbich  up  until  1876,  and  prior  to  the 
inauguration  of  the  "  shotgun  policy  "  was  a  Republican  district  by  a 
large  majority. 

The  claim  that  the  military  company  at  Hernando  was  organized  to 
promote  the  peace  is,  of  course,  too  transparent  to  fool  even  the  most 
credulous.  The  possibility  that  such  company,  openly  proclaimed  to  be 
constituted  of  the  adherents  of  one  political  party  only,  and  styling  them- 
selves "unterrified"  and  "determined,"  could  exist  under  authority  of, 
and  be  armed  by,  the  State  ot  Mississippi  is  a  disgrace  to  that  State. 

Your  committee  find  that  there  were  other  methods  pursued  in  the 
Second  Congressional  district  of  Mississippi  "  to  shut  down"  upon  the 
Republican  voters,  which  were  in  contravention  of  law.  Among  these 
were : 

The  constitution  of  partisan  election  boards  having  no  members  other 
than  Democrats. 

The  appointment  in  many  cases  of  parties  on  such  boards  to  repre- 
sent the  Republicans  who,  by  reason  of  ignorance  and  illiteracy,  were 
not  "  competent  and  suitable  men." 

The  unlawful  removal  of  ballot  boxes  from  the  polling-places  and 
from  the  view  of  the  United  States  supervisors. 

The  illegal  erasure  from  the  registration  list  of  duly  qualified  and 
registered  voters,  and  the  refusal  to  permit  them  to  vote. 

The  stealing  of  ballot-boxes. 

The  election  laws  of  Mississippi,  in  so  far  as  it  is  necessary  to  quote 
from  them  for  present  purposes,  prescribe  (Code  of  1880) : 

Sec.  105.  The  hooks  of  registration  of  the  electors  of  the  several  election  districts 
in  each  county  and  the  poll-books  as  heretofore  made  out  shall  be  delivered  by  the 
county  board  of  registration  in  each  county,  if  not  already  done,  to  the  clerk  of  the 
circuit  court  of  the  county,  who  shall  carefully  preserve  them  as  records  of  his  office, 
and  the  poll-books  shall  be  delivered  in  time  for  every  election  to  the  commissioners 
of  election,  and  after  the  election  shall  be  returned  to  said  clerk.  The  clerk  of  the 
circuit  court  of  each  county  shall  register  on  the  registration  books  of  the  election 
district  of  the  residence  of  such  person  any  one  entitled  to  be  registered  as  an  elector, 
on  his  appearing  before  him  and  taking  and  subscribing  the  oath  required  by  Article 
7  and  section  3  of  the  constitution  of  this  State,  and  printed  at  the  top  of  the  pages 
of  the  registration  books,  which  subscription  of  the  oath  aforesaid  shall  be  by  the 
person  writing  his  name  or  mark  in  the  proper  column  of  said  book. 

Sec.  121.  Two  months  before  any  general  election  and  any  election  of  Re{)resenta 
lives  in  Congress,  and  any  election  of  elector  of  President  and  Vice-President  of  the 
United  States,  the  governor  and  lieutenant-governor,  or  president  of  the  senate  if 
the  lieutenant-governor  is  performing  the  duties  of  governor,  or  if  there  is  no  lieuteu- 
ant-governer,  and  the  secretary  of  state,  or  a  majority  of  such  officers,  shall  appoint 
in  each  county  in  this  State  "  commissioners  of  election,"  to  consist  of  three  competent; 
and  suitable  men,  who  shall  not  all  be  of  the  same  political  party,  if  such  menof  dif- 


CHALMERS    VS.    MORGAN.  337 

fcrent  •political  parties  can  conveniently  be  had  in  the  county,  and  who,  for  good 
cause,  may  be  removed  in  the  same  manner  as  they  are  appointed.  Before  actiog, 
the  said  commissioners  shall  severally  take  the  oach  of  office  prescribed  by  the  con- 
stitution and  file  in  the  ottice  of  the  chancery  clerk  of  the  county,  wlio  shall  preserve 
such  oaths.  While  engaged  in  their  duties  the  said  commissioners  shall  be  conser- 
vators of  the  peace,  with  all  the  powers  and  duties  of  such,  in  the  county  in  which 
they  are  acting.  They  shall  continue  m  office  for  one  year,  unless  removed,  and  until 
successors  are  appointed. 

Sec.  124.  On  the  last  Monday  of  October  preceding  a  general  election  and  five  days 
before  any  other,  the  commissioners  of  electiou  shall  meet  at  the  office  of  the  clerk  of 
the  circuit  court  of  the  county  and  carefully  revise  the  registration  books  of  the  county 
and  the  poll-books  of  registration  of  the  several  jireciiiLts,  and  shall  erase  therefrom 
the  names  of  all  persons  improperly  thereon,  or  who  have  died,  removed,  or  become 
disqualified  as  electors  from  any  cause,  and  shall  register  the  names  of  all  persons  ille- 
gally denied.  All  complaint  of  a  denial  of  registration  may  be  misde  to,  and  be  heard 
and  decided  by,  the  commissioners  of  elections,  who  shall  cause  the  books  of  registra- 
tion to  be  corrected,  if  necessary,  so  as  to  show  the  names  of  all  qualified  electors  in 
the  county,  and  such  books  shall  be  prima  facie  evidence  of  the  names  and  number 
of  the  qualified  electors  of  the  county. 

Sec.  125.  The  clerk  of  the  circuit  court  shall  attend  such  commissioners,  if  so  re- 
quested, and  shall  furnish  them  the  books  of  registration  and  the  poll-books,  and  shall 
render  theui  all  needed  assistance  of  which  he  is  capable  in  the  performance  of  the 
duties  in  revising  their  lists  of  qualified  electors. 

Section  133  is  as  follows: 

Prior  to  any  election  the  said  commissioners  of  election  shall  appoint  three  persons 
for  each  election  precinct  to  be  inspectors  of  the  election,  who  shall  not  iill  be  of  the 
same  jioliiical  party,  if  suitable  persons  of  different  parties  are  to  be  had  in  the  elec- 
tion district,  and  if  any  person  a^) pointed  shall  fail  to  attend  and  serve  the  inspectoia 
present,  if  aiiT,  may  designate  one  to  fill  his  place,  and  if  such  coiniuissioners  of  elec- 
tion shall  fail  to  make  such  apjiointment,  and  in  case  if  failure  of  all  tlio)>e  ap])ointed 
to  attend,  any  three  qualified  electors  present  when  the  j)olls  shall  be  opened  may  act 
as  inspectors. 

Section  136  is  in  the  following  words : 

All  elections  by  the  people  of  this  State  shall  be  by  ballot.  The  poll  shall  be  open 
by  nine  o'clock  in  the  morning  and  be  kept  open  until  six  o'clock  in  the  evening,  and 
no  longer  ;  and  every  person  entitled  to  vote  shall  debver  to  one  of  the  insjiectors,  in 
the  presence  of  the  others,  a  ticket  or  scroll  of  paper  on  which  shall  be  written  or 
printed  the  names  of  the  persons  for  whom  he  intends  to  vote,  which  ticket  shall  be 
put  in  the  ballot-box,  and  at  the  same  time  the  clerks  shall  take  down  on  separate 
lists  the  name  of  every  person  votiug  ;  and  when  the  election  shall  be  closed  the  in- 
spectors shall  publicly  open  the  box  and  number  the  ballots,  at  the  same  time  reading 
aloud  the  names  of  the  persons  voted  for,  wnich  shall  be  taken  down  by  said  clerks 
in  the  presence  of  the  inspectors;  and  if  there  should  be  two  or  more  tickets  rolled 
up  together,  or  if  any  ticket  shall  contain  the  names  of  more  perstms  for  office  than 
such  elector  had  a  right  to  vote  for,  such  ballot  shall  not  be  counted. 

At  Lamar,  Horn  Lake,  IJesbitt,  Eudora,  Olive  Branch,  College 
Hill,  Looxahouia,  and  Strayhorn,  the  election  machinery  was  exclu- 
sively in  the  hands  of  the  Democrats,  in  express  violation  of  the  law 
which  required  the  inspectors  to  be  "  suitable  persons  of  different  par- 
ties ; "  or,  where  there  was  any  pretense  made  of  appointing  a  Repub- 
lican the  appointee  was  illiterate  and  disqualified  to  perform  the  duties 
of  his  ofiBce.  And  the  evidence  goes  to  show  that  such  appointees  were 
expressly  selected  because  of  their  incompetency. 

The  law  of  Congress  on  this  subject  is  well  settled : 

The  appointment  of  the  managers  of  election,  in  fairness  and  common  decency, 
should  be  made  from  opposite  political  parties.  A  refusal  to  do  so  in  the  face  of  a 
statute  directing  it  to  be  done  may  in  some  cases  be  evidence  of  fraud,  and  it  might 
form  an  important  link  in  a  chain  of  circumstances  tending  to  establish  a  conspiracy. 
(Buchanan  vs.  Manning,  Calkins  Heport  Dig.  Elec.  Cases,  IbdO-lSH^,  page  '^'^7.) 

In  many  places  the  ballot-boxes  were  removed  from  the  presence  of 

the  United  States  supervisor,  against  his  will  and  without  pretense  of 

justification  or  excuse.    Every  presumption  arises  against  those  guilty 

of  such  open  and  express  violations  of  a  statute  pass'ed  i:i  tae  iiitcicjl; 

B.  Mis.  137 22 


338  CHALMERS   VS     MORGAN. 

of  pure  elections.  And  where,  as  in  this  case,  the  practice  is  so  com- 
mon, it  is  hard  to  avoid  the  conclusion  that  it  is  the  result  of  concert  for 
a  fraudulent  purpose. 

It  is  contended  upon  the  part  of  contestee  that  a  custom  prevails  in 
many  of  the  voting  ])laces  in  his  district,  to  adjourn  for  dinner,  and 
that  it  is  customary  to  carry  oft'  the  box  at  such  adjournment.  But 
such  custom  seems  always  to  involve  the  taking  of  the  box  from  the 
oversight  of  the  United  States  supervisor,  and  it  is  a  bad  one  and  not 
to  be  tolerated.  In  many  instances  this  excuse  can  not  be  urged  in 
palliation  of  the  offense  against  the  law. 

For  example  :  J.  C.  Clifton  was  the  United  States  sui)ervisor  at  Tay- 
lor's box  in  Tate  County.  He  testifies  (Record,  p.  lUO)  that  the  box 
was  carried  off  from  the  voting  place. 

It  was  carried  2^  or  3  miles,  to  the  house  of  W.  S.  Bailey.  I  followed  the  box  ; 
Biiily  and  Piter  drove  very  fast,  and  every  time  I  would  gain  on  them  Baily's  step- 
son would  Lalloo.  I  overtook  the  buggy  about  a  half  mile  from  his  house,  and  rode 
aloug  with  it  from  there  to  the  house.  When  I  overtook  the  buggy  I  asked  them 
what  in  the  hell  or  what  in  the  thunder  are  you  driving  so  fast  ?  I  won't  be  positive, 
but  it  seemed  to  me  that  Pifer  was  trying  to  hide  something  behind  his  coat ;  I  don't 
know  what  it  was.  On  arriving  at  his  house  he  took  his  horse  out  and  toi)k  him  to 
the  barn,  where  he  remained  long  enough  to  have  fed  a  dozen  horses.  During  this 
time  the  step-son  and  I  remained  with  the  box,  which  was  still  in  the  buggy.  It  was 
Baily  who  went  to  the  barn  ;  Pifer  had  gone  home  ;  Baily  staid  in  the  house  and  got 
inside  of  his  yard  with  the  box,  and  I  was  with  him.  He  turned  around  to  me  and 
says,  I  haven't  invited  you  here;  I  don't  want  you  to  come  any  further.  I  then  said 
to  him  it  was  my  sworn  duty  to  watch  the  box.  He  then  said  he  would  pnt  the  box 
down  in  his  passage  or  porch,  whatever  you  might  call  it,  and  I  said,  "Then  I  can 
stand  at  the  gate  and  watch  it ; "  then,  as  he  started  on  into  his  house,  he  turned 
round  to  me  and  said,  "When  I  get  through  eating,  you  can  come  round  the  back 
way,  and  I  will  give  you  something  to  eat." 

This  box  was  subsequently  stolen  and  no  returns  were  made  of  the 
election  at  Taylor's,  where  the  evidence  indicates  that  there  was  a  large 
Eepublican  majority.  The  truth  is  that  the  stealing  of  the  box  is  itself 
l)ersuasive  proof  that  this  was  the  fact. 

As  to  the  theft  of  the  box,  Clifton  says  (Eecord,  p.  191): 

The  box  was  stolen,  but  before  the  box  was  stolen  they  came  with  a  light,  which 
was  a  very  small  brass  lamp.  W^.  S.  Baily  ordered  the  peace  officers  to  clear  the  room 
and  they  would  proceed  to  count.  I  said  to  W.  S.  Baily,  "That  is  not  lawful;  the 
vote  should  be  counted  publicly;"  then  I  proceeded  to  read  the  law,  and  W.  S.  Baily 
took  the  lamp  and  went  about  ten  feet  from  the  box,  set  the  lamp  down  on  a  bench, 
and  got  between  the  light  and  box,  and  then  when  I  commenced  reading  they  blew 
the  li<;ht  out.  That  was  when  the  box  was  stolen,  and  T.  A.  Hall  was  sitting  by  the 
box  when  it  was  stolen. 

W.  S.  Bailey  subsequently,  within  less  than  a  month,  shot  the  super- 
visor (Clifton)  because  of  the  difficult}'  which  grew  out  of  the  carrying 
away  of  this  box. 

Tlie  only  re])ly  made  by  the  contestee  with  respect  to  this  unblushing 
outrage  on  decency  is  this: 

In  contestant's  notice  of  contest  no  mention  is  made  of  this  box,  and  no  allusion  to 
any  fraud  or  irregularity  as  it  appears  in  the  pleadings.  The  only  witness  touching 
the  matter  was  examined  after  contestant's  time  expired,  to  wit,  February  22  (R.,  j}. 
lyl),  and  on  a  day  not  named  in  any  notice.  If  the  box  was  stolen,  then  the  actual 
vote  was  open  to  proof.  If  this  could  not  be  ascertained,  then  the  iox,  not  the  county, 
should  be  rejected. 

It  is  to  be  noted  that  contestee's  counsel  attended  and  cross-examined 
this  witness.  Aside  from  any  question  as  to  the  value  in  votes  of  an  elec- 
tion misconducted  in  this  way,  it  would  have  been  refreshing  to  have 
had  some  explanation  of  why  such  things  are  possible  in  one  of  the 
States  of  the  United  States,  ' 


CHALMERS    VS.    MORGAN.  339 

Sufficient  has  been  said  to  show  how  the  TJnited  States  supervisor's 
law  was  violated  and  the  reasons  for  it.  It  may  be  added  that  the  box 
was  carried  off  at  each  of  the  followinj^  precincts:  Hernando  No.  1, 
Hernando  No.  2,  Loves,  Olive  Branch,  Senatobia,  Sherrods. 

The  importance  to  the  people  of  the  whole  country  of  a  proper  observ- 
ance of  the  provisions  of  the  Federal  statutes  with  respiect  to  elections 
has  repeatedly  been  affirmed  by  Congress  and  by  election  committees, 
both  Republican  and  Democratic. 

In  the  Forty-fifth  Congress  (Democratic),  in  the  case  of  Dean  vs. 
Fields,  the  following  was  said : 

Congress,  in  pursuance  of  its  constitutional  power  to  make  regulations  as  to  the 
times,  places,  and  manner  of  holding  elections  for  Representatives  in  Congress,  or  to 
alter  State  regulations  on  the  subjects,  enacted  the  foregoing  provisions.  They  must 
he  held  valid  and  binding  on  all  the  States.  From  the  enacting  of  these  provisions 
(February  28,  1871)  they  became  a  part  of  the  election  law  of  the  State  of  MassacBu- 
setts,  overriding  all  opposing  State  statutes  made  or  to  be  made  by  the  State,  and  the 
passage  of  the  State  law  of  April  20,  1876,  authorizing  an  aldermajiic  count  so  far  as 
it  provided  for  the  taking  of  the  iinal  count  of  the  votes  for  the  Representatives  in 
Congress  out  of  the  supervision  and  scrutiny  of  the  United  States  supervisors  of 
election  was  an  evasion,  if  not  a  nullilication,  of  the  federal  law. 

After  Congress  had  provided  for  the  appointment  of  two  supervisors  of  election  for 
each  voting  i)lace,  and  had  required  such  officers  to  count  the  votes  for  Representa- 
tive in  Congress  and  to  remain  with  the  ballot-boxes  until  the  count  was  wholly  com- 
pleted and  the  certificates  made  out,  it  is  not  competent  for  any  State  to  provide 
another  board  of  canvassers  who  may  take  possession  of  the  hallot-hoxcs,  exclude 
the  federal  officers  and  secretly  count  the  vote  and  declare  a  different  result.  As  the 
counting  of  the  votes  is  now  admitted  to  he  the  most  important  function  to  be  per- 
formed in  reference  to  an  election,  laws  relating  to  this  part  of  the  election  machin- 
ery must  be  strictly  construed  and  rigidly  enlorced.  The  count  made  by  the  alder- 
men was  made  in  secret  three  or  four  days  after  the  election,  partly  in  the  night 
time,  and  the  United  States  supervisors  and  all  other  persons,  except  the  three  alder- 
men, were  excluded  from  the  room  and  were  not  allowed  to  see  what  was  being  done. 
A  count  under  such  circumstances  is  in  derogation  of  the  acts  of  Congress  and  of  no 
validity  wuatever.     (Dig.  El.  Cases  1876  to  1880,  page  194.) 

The  same  doctrine  was  held  in  the  Forty-seventh  Congress,  which 
was  Republican,  in  the  case  of  Buchanan  vs.  Manning,  as  follows : 

If  it  be  shown  that  there  was  an  unlawful  interference  with  the  United  States 
supervisors  of  election,  whereby  they  were  prevented  from  discharging  duties  which 
are  committed  to  their  hands  by  the  law  of  Congress,  it  would  undoubtedly  be  our 
duty  to  set  aside  the  election  at  such  precincts.  The  law  of  Congress  in  respect  to 
Congressional  elections  must  be  obeyed  by  the  people,  and  nothing  will  tend  so  much 
to  bring  this  Government  into  disgrace  as  to  allow  its  will  to  be  nullified  and  its  of- 
ficers overawed  and  prevented  from  performing  their  duty. 

One  of  the  most  sacred  duties  which  this  House  owes  to  the  people  is  to  see  to  it 
that  its  laws  are  enforced  and  obeyed.  The  supervisors  of  election  are  the  eyes  of 
this  House.  Through  them  it  can  scrutinize  every  election,  frauds  of  every  kind  can 
be  detected,  and  ballot-box  stuffing  can  be  stamped  out.  (Dig.  El.  Cases,  1880  to 
1882,  page  2^)0.) 

Still  another  method  of  "shutting  down  upon"  Republicans  in  the 
Second  Congressional  district  of  Mississippi,  is  illustrated  by  what  took 
place  at  Stewart's  box  in  De  Soto  County. 

This  testimony  is  from  the  mouth  of  one  of  contestee's  witnesses,  R. 
T.  Lamb,  who  was  one  of  the  judges  of  election  at  that  box  (Record,  p. 
682): 

Int.  13.  What  was  proposed  to  be  done  with  the  box  after  the  counting  out  of  the  bal- 
lots and  the  result  ascertained  f — Ans.  There  were  various  propositions  made  as  to  who 
should  carry  the  box  to  Hernando,  and  no  one  seemed  to  want  to  be  bothered  with  it 
any  longer,  as  the  election  was  over  and  the  ballots  had  all  been  counted,  so  there  was 
a  proposition  made  that  Adam  Rice  should  bring  the  box  to  Hernando,  as  he  had  been 
anxious  to  be  with  it  all  the  while.  Ho  refused  to  have  anything  more  to  do  with  it, 
and  said  that  he  waa  satisfied,  and  the  clerks  went  off  and  left  the  box  sitting  on  tUe 
tiable  in  the  room  in  wlxich  Peebles  and  myself  slept  that  nijjht, 


340  CHALMERS    VS.    MOEGAN. 

Int.  14.  What  became  of  that  box  ? — Ans.  During  the  night  we  heard  some  one  in 
the  room,  and  an  alarm  was  given  and  we  got  up  and  struck  alight  to  see  who  it  wa8 
or  what  it  was,  and  we  found  the  ballot-box  gone. 

Int.  15.  Please  state  the  result  of  the  election  at  that  box. — Ans.  My  recollection  is 
that  it  gave  the  Republicans  73  majority. 

The  neatness  and  "dispatch  with  which  a  ballot-box  containing  a  ma- 
jority of  Kepublican  votes  can  be  stolen,  without  wrangle  or  bloodshed, 
was  thus  demonstrated.  It  is  hardly  necessary  to  say  that  no  returns 
were  made  from  that  voting  place. 

Still  another  peaceable  method  of  "  shutting  down  "  upon  Republican 
voters,  as  practiced  in  the  Second  Congressional  district  of  Mississippi, 
is  to  have  no  election  at  polls  where  the  Republicans  are  likely  to  be  in 
the  majority.  An  example  of  how  this  can  be  done  is  found  in  what 
took  place  at  Early  Grove  box,  in  Marshall  County. 

The  witness  is  Dr.  A.  M.  Lyle,  who  says  (Reex)rd,  p.  187) : 

lam  fifty-iive  years  old;  I  am  a  practicing  physician;  I  have  resided  in  Early 
Grove  thirty-three  years. 

No  election  was  held  at  the  Early  Grove  precinct  in  November,  1888.  The  judges 
who  were  appointed  to  hold  the  election  would  not  open  tlie  box  to  receive  the  votes, 
under  the  pretense  that  no  justice  was  present  to  qualify  them.  I  pointed  out  and 
read  from  the  code  the  sections  empowering  one  of  the  judges  (in  the  absence  of  any 
one  to  administer  an  oath)  competent  to  administer  oath,  to  quality  the  others  and 
then  to  be  qualified  himself  by  any  one  of  those  so  qualified  to  act.  This  question 
was  debated  until  about  1  p.  m.,  when  the  judges,  one  by  one,  left  the  room  without 
informing  the  electors  that  no  votes  would  be  received,  leaving  the  electors  powerless 
under  the  law  to  open  the  polls. 

There  were  fully  one  hundred  voters  present  to  cast  their  votes  for  James  R.  Chal- 
mers, for  Congress,  seventy  colored  voters,  and  about  thirty  whites. 

There  is  a  majority  anti-Democratic  at  this  box  when  fairly  counted. 

For  the  last  ten  years  the  custom  of  the  Eaily  Grove  box  has  been  to  open  the  polls 
when  the  chances  indicated  a  Democratic  majority,  or  the  majority  would  be  counted 
for  that  party,  and  if  the  indications  pointed  to  a  majority  being  cast  against  the 
Democratic,  not  to  open  the  polls;  or  if  open,  and  counted,  and  the  majority  found 
to  be  anti-Democratic,  not  to  send  the  box  up  to  the  county  court-house. 

But  even  when  elections  are  held,  votes  may  be  so  manipulated  as  to 
control  the  majority  for  the  party  desired,  irrespective  of  the  party  for 
whom  the  votes  may  have  been  cast.  This  is  illustrated  by  what  took 
place  at  Batesville,  in  Panola  County. 

There  the  United  States  supervisor  was  a  lawyer  by  the  name  of  L. 
B.  Lester.  According  to  his  testimony  (and  there  is  no  contradiction 
of  it)  the  election  was  conducted  in  the  most  fraudulent  manner.  Men 
entitled  to  vote  were  refused  upon  the  ground  that  their  names  were 
not  on  the  registration  list,  when  in  point  of  fact  they  had  been  on  such 
list  and  illegally  stricken  therefrom.  But,  in  addition,  the  box  was  so 
placed  by  the  election  officers  as  to  prevent  the  supervisor  from  seeing 
whether  tickets  were  properly  placed  therein.  The  tickets  were  manip- 
ulated by  one  T.  J.  Mabry,  one  of  the  judges  of  the  election,  and  in 
such  a  manner  as  to  change  a  Republican  majority  into  a  Democratic 

Lester's  testimony  is  important,  and  we  quote : 

Q.  Will  you  please  state  your  position  in  regard  to  the  ballot-box  and  the  other  of- 
ficers of  the  election  on  that  day?  State  whether  there  was  any  change  made  in  the 
position  of  the  box  and  of  the  officers  during  the  day.  State  fully. — A.  There  was  a 
change  made  at  noon,  sir.  In  the  morning  1  had  a  position  where  I  could  see  every- 
thing.    By  the  change  made  at  noon  I  could  see  nothing  comparatively. 

Q.  Which  one  of  the  judges  of  election  on  that  day  received  the  tickets  from  the 
hands  of  the  voters  ? — A.  A  colored  man  by  the  name  of  Dailey  Knox. 

Q.  Which  one  of  the  judges  placed  the  tickets  in  the  box? — A.  Mr.  T.  J.  Mabry. 

Q.  What  were  the  politics,  respectively,  of  those  two  men? — A.  I  couldn't  tyll  yoq 
Mr.  Mabiy'd  politics,  sir;  he  was  a  stranger  in  our  county. 


CHALMERS    VS.    MORGAN.  341 

Q.  Do  you  know  which  party  he  was  representing  there  that  day  asinspcctor  of  the 
election  ? — A.  Democratic  party. 

Q.  When  the  transfer  was  made  of  the  tickets  from  the  hands  of  Dailey  Knox,  the 
negro  who  received  the  tickets,  into  the  hands  T.  J.  Mabry,  who  deposited  the  tickets 
in  the  box,  could  you,  or  not,  see  the  hands  of  those  two  persons  from  your  position  ? — 
A.  I  conld  see  the  tickets  pass  from  Knox  to  Mabry. 

Q.  All  day? — A.  Yes,  sir;  all  day. 

Q.  Could  you  see  Mabry's  hand,  or  not,  all  the  time  while  the  ticket  was  being 
transferred  in  it  from  Knox's  hand  to  the  box? — A.  No,  sir. 

Q.  Did  you  notice  anything  that  day  which  led  you  to  believe  there  was  any  change 
of  tickets  being  made  after  they  left  Knox's  hands  before  being  deposited  ?  A.  AH 
the  indications  pointed  to  something,  sir ;  I  couldn't  tell  what.  He  had  an  opportu- 
nity ojf"  changing  them,  because  he  put  his  hands  right  behind  the  box  every  time. 

Q.  At  whose  suggestion  was  the  change  in  the  position  of  the  officers  of  the  elec- 
tion and  of  the  furniture  in  the  room  where  the  election  was  being  held  made? — 
A.  Made  by  Mr,  Stone,  one  of  the  inspectors  of  election. 

Q.  What  were  the  politics  of  Mr.  Stone? — A.  Democrat. 

Q.  How  often  has  Mr  Stone  been  an  inspector  of  election  there? — A.  Well,  sir,  I 
don't  know  that  he's  been  more  than  about  once  or  twice  before ;  don't  remember, 
though 

Q.  Did  j'ou  notice  whether  there  was  anything  wrong  with  the  registration  books 
that  day ;  if  so,  state  what  ? — A.  Well,  there  was  about  60  names  scratched  off  the 
book,  sir,  that  applied  to  vote. 

Q.  Did  you  know  any  of  the  persons  whose  names  were  scratched  oflF? — A.  Yes,  sir ; 
several  of  them. 

Q.  Did  yoH  know  whether  they  vere  legally  qualified  voters,  except  as  to  registra- 
tion, of  the  Batesville  precinct  f  —A.  All  those  that  I  know,  sir,  had  been  voting 
there  all  the  time  for  the  last  eight  or  ten  years. 

Q.  What  was  the  reason  given  why  they  were  refused  to  vote? — A.  Because  their 
names  were  s-Tatched  on  the  poll-book,  sir. 

Q.  Was  it  or  not  stated  that  some  of  them  were  dead,  marked  dead  when  they 
came  up?— A.  There  was  sixteen  marked  dead  on  the  poll-book,  sir,  tnat  applied. 

Q.  Were  any  of  those  persons  marked  dead  well  known  in  and  around  Batesville 
or  not? — A.  Yes,  sir;  there  was  some  old  colored  men  that's  been  living  there  all  their 
lives. 

Q.  Did  you,  or  not,  see  the  books,  or  merely  hear  the  judge's  remark  their  names 
were  marked? — A.  I  took  the  judge's  word  for  it.  He  called  them  out.  I  couldn't 
see  the  books  at  all. 

Q.  What  was  the  relative  number  of  white  and  colored  men  voting  there  that 
day  ? — A.  Nearly  four  to  one,  sir. 

Q.  In  whose  favor  ? — A.  Colored. 

Q.  There  has  been  a  good  deal  of  testimony  to  the  effect  that  a  great  many  negroes 
have  left  that  part  of  Panola  County  in  the  vicinity  of  Batesville.  Do  you  know 
anything  of  that  ?— A.  Yes,  sir  ;  there's  been  a  good  many  left  there  in  the  last  three 
or  four  years,  but  a  good  many  come  in  too,  sir. 

Q.  Have  you  heard  any  remark  made  by  any  man  in  a  position  to  know  whereof  he 
spoke  in  regard  to  the  number  of  colored  people  who  had  moved  in  there  ? 

(Objected  to  on  the  ground  that  the  question  calls  for  an  answer  founded  upon 
hearsay. ) 

A.  Well,  Captain  Knox  told  me — he's  our  assessor,  sir — that  there  were  about  as 
many  colored  voters  now  as  there  were  three  or  four  years  ago. 

Q.  Is  it  or  not  a  fact  that  the  assessor  and  sheriff,  in  his  capacity  as  tax-collector, 
would  be  the  best  witnesses  as  to  the  number  of  colored  voters  in'that  county  ?— A. 
I  should  think  so,  sir  ;  they  have  the  list. 

This  testimony  is  sufficient  to  give  rise  to  a  strong  presumption  that 
fraud  was  committed  at  the  Batesville  box.  But  presumption  ripens 
into  certainty  when  we  come  to  consider  the  testimony  of  fl:  C.  Wor- 
sham,  which  is  as  follows  (Kecord,  p.  472) : 

Q.  What  is  your  name,  your  age,  and  your  occupation  ?— A.  H.  C.  Worsham  ;  age, 
33  years ;  occupation,  farmer. 

Q.  Where  do  you  reside  ?— A    My  home  is  in  Ripley,  Tippah  County,  Miss. 

Q.  Did  you  ever  see  a  man  who  held  the  last  election  at  Batesville  anytime;  if  so, 
who  was  he  and  where  did  you  see  him  ?— A.  I  saw  one  Mr.  T.  J.  Mabry  in  Memphis 
on  the  11th  day  of  January. 

Q.  Did  you  have  any  conversation  with  him  about  the  election  at  Batesville?— A. 
I  did. 

Q.  Who  was  with  yon  when  you  had  this  conversation  with  him  ?— A.  Mr.  Ash 
Thomas,  from  Benton  County,  Miss.,  and  Mr.  Till  Williams,  from  Tippah  County. 


342  CHALMERS    VS.    MORGAN. 

Q.  Where  did  the  conversatiou  occur  f — A.  It  occurred  in  the  Lack  room  of  a  saloon 
on  Second  street,  if  I  ain  not  mistaken  about  that,  that  Mr.  Mabry  had  been  ruiiniug 
and  that  morning  had  .sold  out. 

Q.  What  city  was  that  ?— A.  Memphis,  Teun. 

Q.  How  came  you  to  go  there? — A.  You  told  me  to  go  there ;  that  you  believed  he 
was  one  of  the  judges  of  the  election  at  Batesville  and  believed  I  could  get  it  out  of 
hira,  if  I  would  go  there  and  approach  him  right  and  get  a  confession  that  he  stuffed 
the  ballot-box  at  Batesville. 

Q.  You  went  there,  then,  at  my  instance,  to  act  as  a  detective? — A.  Yes,  sir. 

Q.  State  all  that  occurred. — A.  We  went  to  the  house  and  the  front  door  was  closed : 
we  went  around  and  in  at  the  side  door;  told  him  I  wanted  a  drink  of  whisky;  he  said 
he'd  sold  out  and  could't  sell  whisky.  I  told  him  I  believed  he  was  a  Mississippi 
man  ;  he  said  he  wa.s.  Wo  brought  up  the  question  of  what  the  Aliens  were  doing.  I 
told  him  I  didn't  think  the  Aliens  were  doing  much ;  that  they  had  done  but  one  real 
good  thing — that  was  in  defeating  Stevens  in  the  nomination  for  Congressman,  giving 
Judge  Morgan  the  nomination;  that  I  thought  the  Lines  did  that,  and  I  says  to  him, 
"It's  not  so  bad  in  our  county  as  it  is  in  Panola  County;  there  are  but  few  negroes 
there  and  some  white  people  vote  the  Republican  ticket  and  we  don't  have  to  stutf 
the  ballot-box,  but  we  can  do  it  if  necessary;"  and  then  be  told  me  he  was  one  of 
the  judges  at  that  election  himself,  and  I  asked  him  how  he  managed  it.  He  said, 
before  dinner  he  couldn't  work  it  right,  couldn't  operate  it  well,  Mr.  Lester  watched 
him  too  dope;  but  after  dinner  he  put  the  box,  he  said,  back  in  the  corner  and  got 
the  books  between  he  and  Lester,  and  then  he  changed  the  votes  to  suit  himself;  and 
during  the  conversation  I  remarks  to  him :  "That  box  is  largely  Eepublican,  isn't 
it?"  He  says,  "Yes,  sir."  Well,  I  then  asked  him  how  much  majority  Judge  Mor- 
gan got  there?  I  disremember  what  he  said  to  that;  J  think,  though,  he  said  about 
200  or  more,  and  just  at  that  time  Mr.  Williams  says  to  him,  he  says,  "If  the  elec- 
tion had  been  fair  there,  General  Chalmers'  majoritv  would  have  been  fiillv  yOO,  would 
it  not?"     He  said,  "  Oh,  yes." 

Worsham's  testimouy  is  fully  corrobated  by  that  of  J.  A.  Thomas, 
one  of  the  purties  with  him  when  he  visited  Mabry.  Thomas's  testi- 
mony, on  page  166  of  tbe  Record,  is  this : 

Ques.  No.  1.  Mr.  Thomas,  where  do  you  reside? — Ans.  Four  miles  east  of  Michigan 
City,  in  Benton  Co. 

Ques.  No.  2.  When  were  you  in  Memphis  last,  Mr.  Thomas? — Ans.  About  the  elev- 
enth and  twelfth  of  January  last. 

Ques.  3.  Did  you  meet  H.  C.  Worsham,  Til.  Williams,  and  Gen.  Chalmers? — Ans. 
Yes,  sir;  I  did. 

Ques.  No.  4.  Where  did  you  see  those  parties  ? — Ans.  At  various  places  in  Memphis. 

Ques.  No.  5.  On  what  days  did  you  remain  in  Memphis,  Mr.  Thomas  ? — Ans.  The 
eleventh  and  twelfth. 

Ques.  No.  6.  I  will  ask  you,  Mr.  Thomas,  to  state,  as  near  as  you  can,  where  you 
and  Mr.  Worsham  and  Til.  Williams  went  on  the  eleventh  of  January  last  in  Mem- 
phis ;  who  we  saw,  and  relate  the  conversation,  as  near  as  you  can. — Ans.  Well,  we 
went  aboard  of  2  or  3  steam-boats  and  talked  about  various  thiugs. 

Ques.  No.  7.  Do  you  remember  the  conversation  that  occurred  between  H.  C.  Wor- 
shffm  and  Mr.  Mabry  ? — Ans.  Yes ;  I  remember  the  conversation  that  occurred — the 
conversation  in  the  port. 

Ques.  No.  8.  I  will  ask  you,  Mr.  Thomas,  to  state  what  that  conversation  was,  as 
near  as  you  can. — Ans.  I  went  with  Mr.  Worsham  and  Mr.  Williams  to  Mr.  Mabry'a 
place  of  business,  and  the  front  door  was  closed,  and  we  went  around  to  the  rear  of 
his  place  of  business.  There  were  two  young  men  in  the  room.  Mr.  Worsham  called 
for  Mr.  Mabry.  One  of  the  young  men  answered  to  that  name,  and  Mr.  Worsham  in- 
troduced him.self  as  a  Mississippian  ;  also  Mr,  Williams  and  myself.  Mr.  Mabry  asked — 
Mr.  Worshau)  asked  Mr.  Mabry  how  the  alliance  was  progressing  in  our  section  of 
county.  Mr.  Worsham  answered  and  said  it  was  getting  along  very  well ;  it  had 
done  one  good  thing — that  it  had  helped  Morgan  to  defeat  Stevens  for  the  nomination. 
Mr.  Mabry  said  he  helped  the  election  at  Batesville,  and  that  he  had  been  censured 
for  the  management  of  the  box  ;  and  some  one  of  the  party,  either  Mr.  Worsham  or 
Mr.  Williams  one,  asked  him  how  the  result  of  the  election  was  there  at  Batesville; 
and  he  said  it  was  200  majority  for  Morgan,  and  it  would  have  been  200  for  Chal- 
mers if  he  had  not  lixed  it ;  and  Mr.  Worsham  or  Mr.  Williams  one  asked  him  how  he 
managed  to  fix;  he  said  they  received  the  votes  through  a  window  ;  the  supervisors 
were  outside  of  the  window,  and  he  moved  back  in  the  corner  so  that  the  supervisor 
on  the  outside  could  not  see  him ;  that  there  was  one  colored  man  inside  the  room ; 
and  he  notified  the  colored  man  that  he  was  managing  the  business,  and  for  the  col- 
ored man  to  attend  to  his  business,  that  he  was  managing  that  business ;  and  Mr. 


CHALMERS    VS,    MORGAN.  343 

Williams  aslied  Mr.  Mabry  if  be  niulerstood  liim  to  say  that  he  managed  to  give 
Morgan  200  majority  wLoii  it  otherwise  would  have  been  200  for  Chalmers ;  and  he 
said  yes,  that  is  jnst  what  ho  done.  This  is  about  all  I  remember  that  occiiired  about 
Morgan  and  Chalmers  in  that  couversation. 

11  the  testimony  of  Lester,  Worsham,  and  WiDiams  is  to  be  believed, 
a  very  practicable  and  effective  method  of  "sbiittingdowu  upon"  the 
Eepublicans  at  the  Batesville  box  was  put  into  execution,  and  with 
profitable  results. 

Each  of  these  witnesses  was  rigidly  cross-examined,  but  without 
result  as  to  the  truthfulness  of  his  testimony. 

If  these  witnesses  were  not  telling  the  truth  they  might  easily  have 
been  contradicted.  No  attempt  was  made  to  contradict  them.  On  the 
contrary,  the  serious  charge  made  by  their  evidence  is  met  only  by 
abuse  of  Worsham  by  contestee's  counsel,  who  calls  him  a  "buck,"  and 
charges  him  with  certain  supposed-to  be  disreputable  things.  (Con- 
testee's brief,  pp.  80-81.)  But  abuse  is  not  argument,  much  less  evidence, 
and  fails  here,  as  it  always  fails,  to  meet  the  issue. 

Quite  as  disgraceful  as  the  action  of  Mabry,  if  not  more  so,  is  the 
mean  assertion  of  contestee's  counsel,  that  because  he  (counsel)  failed 
to  find  Mabry  in  Memphis  (and  we  have  nothing  but  his  unsworn  state- 
ment for  that). 

The  contestant  in  person  placed  a  man  at  a  saloon  on  Second  street,  near  Union, 
to  personate  T.  J.  Mabry  and  then  sent  his  man  Worsham  to  work  up  the  case, 
AND  HE  DID  so.     (Contestee's  brief,  p.  86.) 

The  italics  and  capitals  are  copied  from  contestee's  brief.  They 
were  not  needed  to  add  emphasis  to  the  assertion.  The  contemDtible 
meanness  of  it  would  have  made  it  impossible  for  any  fair-minded  man 
to  have  overlooked  it. 

At  East  Holly  Springs,  Marshall  County,  the  United  States  super- 
visor testifies  from  a  list  that  he  kept  that  201  Eepublican  votes  were 
cast,  while  the  returns  show  only  93.  He  further  testifies  that  he  saw 
one  of  the  judges 

shake  his  sleeves  and  drop  tickets  out  of  his  sleeve.  I  couldn't  see  what  he  done  with 
the  tickets;  he  got  them  away  in  such  a  way  I  couldn't  see  what  he  done  with  them; 
he  had  a  pair  of  big  cuffs  on,  and  they  rattled  down  his  sleeve. 

This  testimony  is  uncontradicted. 

Yoar  committee  have  no  doubt  as  to  what  the  judge  did  with  the 
tickets  dropped  from  his  sleeve. 

At  Springport,  in  Panola  County,  where  the  person  appointed  Repub- 
lican inspector  could  neither  read  nor  write,  Manuel  Jones  testified 
(Record,  p.  444)  as  follows: 

Q.  Were  you  at  the  Springport  box  at  the  last  election  for  Congressman  ? — A.  Yes, 
sir;  1  was  there. 

Q.  What  ticket  did  yon  try  to  vote? — A.  Republican  ticket. 

Q.  State  now  what  you  saw  done  with  your  ticket  when  yon  handed  it  in  at  the 
window  ? — A.  Well,  when  I  handed  in  the  ticket  at  the  window  he  took  mj^  ticket  in 
his  right  hand — he  was  a  white  man — and  he  was  standing  between  me  and  the  box, 
the  box  was  behind  him,  and  when  he  took  my  ticket  and  turned  around  and  put  hia 
right  hand  in  his  pocket  until  he  got  most  to  the  box,  and  he  put  his  left  hand  into 
his  left  pocket  and  then  brought  his  left  hand  up  to  his  right  hand,  and  then  with 
his  right  hand  put  a  ticket  in  the  box. 

Q.  Was  any  tiling  said  at  the  time  by  anyone  present  ? — A.  There  was  a  man  stand- 
ing behind  me  Wfto  said,  "  There,  he  changed  that  ticket  sure  ;  that  makes  the  fifth 
that  has  been  changed  to-day."  I  didn't  think  he  had  made  the  exchange  until  the 
fellow  said  that  word,  and  then  I  watched  after  that  to  see  if  he  would  change  an- 
other one,  and  he  changed  anothejoue  in  the  same  way. 

This  testimony  is  uncontradicted. 


344  CHALMERS  VS.  MORGAN. 

There  is  no  doubt  in  the  mintlsof  your  committee,  from  the  evidence 
presented  in  tliis  r(u;or(l,tbat  iniinen.se  frauds  were  practiced  in  this  Con- 
f^ressional  district  by  the  simple  device  of  uulawtully  striking-  names 
fiom  the  registry  list,  and  then  refusing  to  receive  votes  because  of 
alleged  want  of  registration. 

It  would  be  tedious  to  go  through  the  election  districts  in  detail  and 
to  quote  the  uncontradicted  evidence  of  witnesses  to  the  effect  that  they 
were  duly  registered  prior  to  election  day,  but  unregistered  on  that  day. 

A  sample  illustration  of  this  sort  of  fraud  is  to  be  found  in  the  evi- 
dence as  to  the  South  Oxford  box,  in  La  Fayette  County. 

L.  N.  Word,  who  had  been  appointed  United  States  supervisor  for 
the  South  Oxford  box,  was  m  the  office  of  the  circuit  clerk,  a  Democrat 
and  the  custodian  of  the  registration  and  poll-books,  on  the  Saturday 
before  the  election  of  Tuesday,  and  witnessed  the  following  scene  :  Tiie 
poll-books  were  being  delivered  to  messengers  to  be  carried  to  the 
various  i>ollirig  places  in  the  county.  Lem  S.  Dillard  had  charge  of  the 
dispatching  of  the  books  and  boxes  and  selected  the  messengers.  Dur- 
ing this  time  Word  was  looking  over  the  various  poll-books  to  see  if  his 
own  and  several  of  his  neighbors'  names  were  properly  registered,  and 
found  everything  all  right.  He  heard  Dillard  say  that  "  we  (the  Demo- 
cratic boys)  will  give  Morgan  4,000  majority  over  Chalmers." 

Word  was  at  the  South  Oxford  box  on  the  day  of  the  election,  and 
179  colored  Republicans  whom  he  knew  to  have  been  voting  there  for 
a  long  time  and  many  of  whose  names  he  had  seen  properly  registered 
on  the  poll  books  on  the  Saturday  before,  were  not  allowed  to  vote  be- 
cause their  names  had  been  scratched  off".  The  witness  himself  was  not 
allowed  to  vote  and  was  told  he  was  marked  dead. 

The  testimony  ot  Word  is  material  and  we  therefore  quote  it  at  length : 

Q  Where  do  you  live? — A.  In  La  Fayette  Couuty,  in  the  State  of  Miss.,  in  the 
Second  Congresnional  district. 

Q.  The  post-office  address  is  Oxford  ? — A.  Oxford,  Miss.,  sir. 

Q.  How  long  have  you  lived  there? — A.  I  was  born  and  raised  there,  sir. 

Q.  What  posiiion  did  you  occupy  at  the  last  election  at  Oxford  ? — A.  U.  S.  super- 
visor. 

Q.  I  believe  there  are  two  boxes  there,  are  there  not? — A.  Yes,  sir;  north  and  south. 

Q.  Of  which  box  were  you  supervisor? — A.  South  box. 

Q.  Did  you  vote  that  day  ? — A.  No,  sir. 

Q.  Why  ? — A.  My  name  had  been  erased  on  the  poll-book. 

Q.  State  whether  or  not  you  had  beeu  properly  registered. — A.  Yes,  sir  ;  I  had. 

Q.  State  whether  you  had  examined  the  i)oll-l)ook  previous  to  the  election  to  see 
whether  your  name  was  proi)erly  registered  and  when  that  examination  was  made, 
if  at  all. — A.  It  was  my  duty  as  supervisor  to  supervise  the  registration  books  as 
much  so  as  the  election  ;  I  had  the  utmost  confidence  in  the  board  of  registers,  at 
least  the  majority  of  them,  and  I  didn't  attend  their  meetings  regularly.  I  were 
there  3  days  or  a  part  of  :}  days  while  they  were  in  session.  I  think,  sir,  it  was  on 
Wednesday  that  I  examined  the  Oxford  south  book  to  ascertain  if  any  of  ray  neigh- 
bors, their  names  had  been  erased,  and  in  looking  over  that  poll-book  I  came  across 
my  own  name,  and  names  of  ten  or  15  that  lived  right  in  my  immediate  neighborhood 
and  found  them  correctly  registered.  That  was  on  Wednesday  before  the  election  on 
Tuesday. 

Q.  State  whether  any  other  of  the  names  you  examined  besides  your  own  on  that 
Wednesday  before  the  election  were  found  erased  on  the  day  of  the  election. — A.  I'es, 
sir;  there  were  a  great  many  names  that  I  can't  call  the  names  to  memory  now,  only 
a  few  of  them,  probably,  or  15  that  is  right  in  my  immediate  neighborhood. 

Q.  State  whether  or  not  you  know  those  men  to  be  voters. — A.  Yes,  sir;  I  do. 

Q.  And  at  the  south  box? — A.  At  the  south  box. 

Q.  At  Oxford  ?— A.  At  Oxford. 

Q.  How  many  colored  men  voted  at  your  box  that  day? — A.  Well,  sir;  there  were  8, 

Q.  How  many  oifered  to  vote? — A.  There  was — I  can  give  you  Irtie  round  numbers 
applied  to  voie  ;  it  was  4U5,  applied  to  vote — that  is  whites  and  colored.  Out  of  that 
number  there  were  214  voted.  There  was  about  ll:i  that  applied  to  vote  that  their 
names  could  not  be  found  on  the  poll-book,  and  the  balance  that  applied,  their  names 
bad  been  erased. 


CHALMEES   VS.    MORGAN.  345 

Q.  Was  the  number,  or  railier  the  iianos,  of  those  who  liad  been  erased  from  the 
poll-book  colored  or  white  people?— A.  They  were  colored  people. 

Q.  Did  yon  keep  a  list  of  that  number  of  colored  people  that  otfered  to  vote  that 
day  and  were  refused? — A.  Yes,  sir;  I  kept  a  list  of  every  mau  that  applied,  white 
and  black,  and  or  my  book  where  he  was  allowed  to  vote  I  put  it  "  voted,"  and  where 
his  name  could  not  be  found  on  the  poll-book  I  put  it  "  his  name  not  found." 

Q.  When  you  sny  his  name  could  not  be  found,  do  you  mean  that  no  name  had  ap- 
peared there  or  that  it  had  been  scratched  ofl  ? — A.  No  name  appeared  there  at  all. 

Q.  How  do  you  say  your  name  was  marked  on  the  list  ? — A.  My  name  on  the  poll- 
book  it  was  U.N.  Word,  audit  had  been  erased. 

Q.  Isn't  it  the  habit  there  to  mark  dead,  removed,  &c.  ? — A.  Yes,  sir. 

Q.  What  did  they  have  on  your  name  ? — A.  Well,  I  didn't  see  it  dead  there,  but 
they  said,  L.  N.  Word,  dead. 

Q.  Who  said  that?— A.  It  was  one  of  the  clerks  or  judges  that  had  the  poll-book. 

Q.  What  became  of  that  poll-book  in  which  you  had  the  names  of  those  who  had 
applied  to  vote  and  were  refused? — A.  We  had  no  dinner  that  day  and  supper  was 
brought  in  and  we  were  all  eager  to  get  something  to  eat.  We  were  hungry  and  I 
tried  to  get  my  book  in  my  pocket.  It  was  too  large  ;  I  couldn't  get  it  there.  I  turned 
around  and  laid  it  on  the  mantel  board  and  proceeded  to  help  them  set  the  table. 
I  suppose  I  was  doing  that  about  5  or  10  minutes,  and  thought  of  my  book  and  looked 
aroun<l  and  it  was  gone. 

Q.  Have  you  ever  seen  that  book  since  ? — A.  No,  sir  ;  I  have  not. 

Q.  Did  you  make  auyeffort  to  secure  the  information  which  that  book  contained? — 
A.  Yes,  sir. 

Q.  State  what  they  were  ? — A.  There  was  another  supervisor  there  that  set  to  ray 
right  and  he  had  never  acted  as  supervisor  before  and  they  got  along  very  fast  and 
he  couldn't  keep  up,  and  he  did  his  copying  from  my  book,  and  after  my  book  was 
missing  I  applied  to  him  for  his  book  to  get  a  copy,  as  it  corresponded  with  mine,  and 
he  says  that  I  can't  let  you  have  it  now,  but  will  let  you  have  it  in  the  moniing.  I 
told  him  that  I  would  only  keep  it  a  few  minutes,  in  order  to  get  a  copy  from  it,  and 
he  said,  well,  he'd  let  me  have  it  in  the  morning.  I  told  him  not  to  let  any  one  have 
it;  I  wanted  a  copy  of  it;  and  he  said  he  would  not,  and  when  he  left  the  room  he 
folded  it  up  and  put  it  in  his  side  vest  pocket.  Next  morning  I  met  him  on  the  street 
and  asked  him  for  it,  and  he  said  some  one  stole  it  out  of  his  pocket  or  he'd  lost  it; 
he  didn't  know  what  had  become  of  it. 

Q.  I  don't  exactly  understand  whether  you  have  stated  as  near  as  you  are  able  the 
number  of  colored  men  who  applied  to  vote  at  the  South  Oxford  box  whose  names 
had  been  erased? — A.  Well,  if  you  will  give  me  a  pencil  I  can  make  the  calculation 
and  state  exactly.     They  were  179  that  applied  to  vote  and  was  rejected. 

Q.  In  my  question  I  ment  to  ask  you  whether  the  men  had  been  refused  because 
of  their  names  being  scratched  oft? — A.  Yes,  sir  ;  that  was  the  cause. 

Q.  Did  you  know  any  considerable  number  of  the  voters  ? — A.  I  did,  sir  ;  know  the 
biggest  part  of  them. 

Q.  Were  they  Rep.  or  Dem.  voters? — A.  They  were  Rep.  voters,  sir. 

Q.  How  long  had  tliej'  been  voting  there  ? — A.  Some  of  them  were  old  men,  some 
of  them  middle-aged,  some  young  men,  and  it  was  their  first  attempt  to  vote. 

Q.  Where  had  they  lived? — A.  They  had  lived  there.  Some  had  just  become  of  age, 
and  some  had  been  voting  there  ever  since  they  had  been  free. 

Q.  Did  you  examine  any  other  poll-book  in  the  county  ot  La  Fayette  except  the 
South  Oxford  book  ?— A.  Yes,  sir;  I  did. 

Q.  What  one? — A.  I  examined — made  a  partial  examination  of  the  Abbeville  book. 

Q.  When  ? — A.  On  Saturday  before  the  election  on  Tuesday. 

Ci.  When  was  the  next  time  you  saw  that  book  and  examined  it  ? — A.  In  the  grand- 
jury  room. 

Q.  State  the  difference  betwe<^n  the  condition  of  the  book,  so  far  as  you  examined 
it,  of  the  Saturday  before  the  election  in  Nov.  and  when  you  examined  it  after  the 
election  before  the  grand  jury. — A.  Well,  I  examined  the  book  from  the  letter  A  down 
to  the  letter  K.  My  intention  was  to  ascertain  how  many  names  had  been  erased  on 
that  jioU-book  from  to  to  Z.  I  was  interrupted  by  a  v>ter  coming  in  and  claiming 
that  he  had  voted  for  a  number  of  year  sat  Abbeville,  and  the  last  time  that  he  had 
applied  to  vote  there  they  said  that  his  name  was  erased,  and  I  only  examined  down 
to  the  letter  K.     I  found  200  names  had  been  erased  down  to  that  letter. 

Q.  That  was  on  the  Saturday  before  the  election? — A.  Yes,  sir;  and  after  the  elec- 
tion, when  I  examined  that  book  before  the  Federal  grand  jury,  I  found  223  names 
had  been  erased  down  to  the  letter  K. 

Q.  Have  you  examined  the  Oxford  books — poll-books  of  the  two  Oxford  boxes  since 
the  election? — A.  I  have  not,  sir. 

Q.  Why  have  you  not? — A.  I  applied  to  the  clerk  to  examine  those  books  and  he 
stated  that  he  had  received  a  notice  from  Gen.  Chalmers  that  he  would  want  those 
books  and  he  had  decided  that  he  would  let  no  one  have  them  until  he  wanted  them, 
and  after  talking  the  matter  over  he  agreed  to  let  me  examine  those  books,  and — well, 


346  CHALMERS   VS.   MORGAN. 

he  partially  agjreed.  I  then  applied  to  him  again  and  asked  him  hie  final  answer,  as 
to  Tvhether  he  would  let  lue  see  those  books  or  not;  he  said  .ves,  he  reckoned  so. 
"How  long  will  you  be  in  examining  those  books,"  I  told  him  I  was  unable  to  say. 
"When  do  you  want  to  examine  those  books?"  That  was  last  Friday.  I  told  him  that 
I  would  want  to  examine  that  book  the  next  day,  Saturday.  He  says,  "I  will  be 
busy  Saturday  and  I  can't  go  to  ray  office;"  well,  says  I,  "Monday  or  Tuesday  or 
Wednesday  ;"  well,  he  says,  "  If  I  am  not  busy  I  will  go  with  you  to  the  office."  On 
Tuesday  I  was  there  and  asked  for  him,  and  he  was  out  at  the  hotel  looking  at  some 
goods.  I  went  to  his  office;  he  was  not  there,  and  I  did  not  applj*  any  more  ;  I  had 
called  there  repeatedly,  and  I  didn't  care  to  go  any  more. 

Q.  At  what  did  he  say  he  would  be  busy? — A.  He's  a  merchant  there,  and  he  said 
he  would  be  busy  at  the  store. 

Q.  When  you  went  to  him  on  last  Friday  did  you  tell  him  at  whose  instance  you 
went  there  to  examine  those  books? — A.  No,  sir;  I  told  him  that  I  come  to  know 
his  final  answer  as  to  whether  he  would  let  me  examine  those  books  or  not. 

Q.  Well,  at  whose  instance  did  you  go  and  make  that  request? — A.  I  went  at  the 
instance  of  Geu.  Chalmers. 

Q.  On  the  Saturdaj'  evening  before  the  election,  when  you  were  examining  those 
books  while  you  were  in  the  office  of  the  circuit  clerk,  did  you  hear  any  conversation 
as  to  sending  out  the  poll-books  to  the  diflerent  precincts? — A.  Yes,  sir. 

Q.  I'll  ask  yon,  then,  to  state  fullv  all  that  occurred  in  that  conversation. — A.  Well, 
sir,  one  of  the  commissioners  remarks — think  it  was  Haywood  Stockard,  that  is  the 
best  of  my  recollection  ;  Haywood  Stockard  said  that — it  seems  that  they  had  to  go 
by  the  dictation  of  L.  S.  DiUard  as  to  who  should  be  messengers  in  carrying  out  those 
boxes,  and  he  said  that  there  was  one  there  that  either  had  written  a  note  to  him 
from  Abbeville  to  come  aud  get  the  box,  or  they  had  sent  him  word,  and  he  said,  "Mr. 
DiUard  come  in  with  Mr.  Bucknear,"  and  said  that  Mr.  Bucknear  must  carry  that  box, 
aud  while  I  were  in  there  examining  that  book,  and  this  colored  man  come  iu  to  see 
if  his  name  was  properly'  registered,  Haywood  Stockard,  one  of  the  commissioners, 
went  out.  They  had  4  or  5  congregated  in  the  clerk's  office;  became  back  with  some 
cigars  iu  his  hand;  Mr  Di.lard  and  Mr.  Bucknear  with  him;  he  gave  the  cigars  to 
Mr.  Both  Stowers,  and  he  said  that  Mr.  Bucknear  was  ready  to  take  that  box,  and 
this  old  man  that  came  in  there  to  see  if  his  name  wa«  properly  registered,  his  name 
could  not  be  found,  but  his  son's  name  could  be,  and  Mr.  Bucknear  left  the  room  with 
the  box.  Mr.  II.  J.  Stowers  said  in  louder  than  an  ordinary  conversation  that  if  this 
man  didn't  get  to  vote  he  was  going  to  raise  hell  About  it ;  that  was  as  Mr.  Bucknear 
was  leaving  the  room  with  the  box  ;  spoke  it  louder  than  an  ordinary  conversation, 
aud  Mr.  Bucknear  left  with  the  box.  I  still  stayed  at  the  table,  and  Mr.  DiUard,  who 
seemed  to  have  been  under  the  influence  of  whiskey,  sat  on  the  table,  and  said: 
"Boys,  how  much  majority  must  we  give  Morgan  in  this  county?"  No  one  made 
any  answer,  and  he  answered  't  himself  and  said  about  4,000. 

Q.  Who  is  L.  DiUard? — A.  He  is  postmaster  at  Oxford,  Miss. 

Q.  Is  he  the  same  man  that  sent  that  famous  telegram,  "  What  is  the  latest ;  we 
are  holding  the  county"? — A.  Yes,  sir. 

Q.  Who  is  R.  J  Stoweis? — A.  Editor  of  the  Oxford  Globe,  a  Democratic  paper. 
That  paper  has  been  started,  though,  in  the  last  two  or  three  weeks.  He  is  a  lawyer 
by  profession,  aud  a  member  of  the  legislature  from  our  county 

Q.  You  say  one  of  the  coru'nissioners  remarked  that  Mr.  DiUard  had  control  of  this, 
and  whoever  he  brought  in  to  take  the  poll-books  must  have  them  ? — A.  Ye.s,  sir;  it 
seems  that  he  had  control  of  them. 

Q.  Well,  did  it  seem  so  in  fact?— A.  Every  time  I  was  there,  and  there  was  a  box 
went  out,  Mr.  DiUard  brought  in  the  messenger  to  carry  it.  I  was  present  when  the 
College  Hill  bi)X  was  sent  out;  Mr.  DiUard  brought  the  men  in  to  carry  that  box. 

Q.  Did  you  have  any  conversation  with  these  judges  of  election  through  the  county 
of  La  Fayette  as  to  the  way  they  proposed  to  carry  things,  and  did  carry  I  hem  at  the 
last  election  ? — A.  Yes,  sir;  yes,  sir;  it  was  since  the  election;  I  were  iu  the  back 
room  of  Brenner  «fe  Wallace's  store  at  Oxford,  and  we  were  discussing  this  erasure, 
and  Mr.  McMahon,  who  was  an  inspector  of  the  election  at  College  Hill,  walked  in  ; 
I  appealed  to  him,  and  asked  him  if  ho  thought  it  was  right.  He  said  that  he  thought 
anything  was  right.  He  says,  "  My  God,  anything  is  right  to  keep  ahead  of  the 
negro."  "  Well,"  I  said,  "  there  was  no  negro  wanted  in  this  canvass."  "That  don't 
make  a  damn  bit  of  ditt'erence ;  the  negroes  voted  for  Chalmers,  and,  by  God,  if  we 
can't  stuff 'um  out,  wee'l  shoot  'um  out;  we  don't  give  a  damn  how  we  get  'ura  out, 
but  we  are  going  to  control  'um."  That  is  his  words  as  near  exactly  as  I  can  get  it ; 
that  was  the  meaning  of  them. 

Q.  This  box,  that  you  speak  of,  was  that  the  poll-box  in  which  the  ballots  were 
dei>osited  ;  were  the  ballots  in  that  box  ? — A.  That  was  Saturday  before  the  election  ; 
on  Tuesday  there  was  nothing  in  the  boxes  except  the  poll-book,  and  probably  the 
Dem.  tickets  were  there ;  I  don't  know. 

Q.  When  these  men  came  up  at  the  South  Oxford  box  and  oflt'ered  to  vote,  and  were 
rejected  because  their  names  had  been  erased,  did  you  ask  them  any  questions  in  the 


CHALMERS   VS.    MORGAN.  347 

presence  of  the  inspectors  as  to  whether  they  had  formerly  voted  iu  recent  elections  ?— 
A.  While  I  did  not  ask  that  question,  some  of  the  inspectors  did,  and  they  said  they 
had  in  the  railroad  election  in  March. 

Q.  What  was  that  election  about  f — A.  To  vote  a  subscription  to  the  E.  R. 

Q.  Was  that  an  election. at  which  all  the  qualified  voters  under  the  laws  of  the 
State  were  allowed  to  vote  ?— A.  Yes,  sir. 

To  this  testiinouy  must  be  added  that  of  the  two  Democratic  com- 
missioners of  election,  which  proves  that  the  poll-books  were  all  right 
when  they  left  their  hands,  but  so  many  names  had  been  erased  when 
the  books  were  returned  that  they  were  really  not  the  same  books. — 
(Eecord,  pp.  631-955.) 

Sufficient  has  been  shown  to  make  certain  that  the  election  methods 
of  the  Second  Congressional  district  of  Mississippi  include  such  as,  if 
sontinued,  must  prove  destructive  of  popular  government.  Their  ex- 
istence calls  loudly  for  relief  by  law,  of  such  a  kind  as  shall  secure  to 
fevery  citizen,  without  distinction  of  race  or  color,  his  constitutional 
ight  of  suffrage. 

Notwithstanding  these  frauds,  your  committee  are  of  opinion  that 
ipon  the  case  as  presented  to  them  on  the  record,  the  proof  does  not 
sustain  the  contestant's  claim  to  an  election,  nor  does  it  prove  that  the 
tcontestee  was  not  elected. 

Api)lying  to  the  evidence  the  well-recognized  rules  of  law  heretofore 
•recognized  by  your  committee,  they  have  in  all  cases  where  satisfied  that 
Ithe  integrity  of  the  returns  had  been  successfully  impeached,  set  aside 
[the  returns  and  recounted  the  vote  in  accordance  with  the  evidence. 

Pursuing  this  method,  your  committee  find  that  the  contestant  was 
^not  elected. 

In  two  counties  of  the  nine  constituting  this  Congressional  district, 
Lin  which  counties  there  are  twenty-three  polling  places,  the  election  is 
[conceded  to  have  been  fair  and  honest.    In  the  remaining  seven  coun- 
ties there  are  ninety-seven  polling  places.    The  validity  of  the  election 
is  assailed  at  fifty-five  of  these,  but  not  successfully,  in  the  opinion  of 
your  committee  at  to  exceed  twenty- two  or  twenty-three. 

In  Benton  County,  for  example,  consisting  of  eleven  polling  places, 
only  two  are  assailed,  to  wit,  Michigan  City  and  Lamar.  No  evidence 
has  been  offered  which  affects  the  legal  presumption  of  honesty  attach- 
ing to  the  nine  unassailed  boxes.  So,  again,  in  Tallahatchie  County 
there  are  fourteen  boxes,  only  two  of  which  were  assailed.  This  is 
sufficient  to  show  that  the  evidence  as  to  the  assailed  boxes  can  not  affect 
those  unassailed. 

In  the  opinion  of  your  committee,  following  the  rules  of  law  to  which 
they  have  already  given  adherence,  the  conceded  fairness  of  the  election 
in  Tippah  and  Union  Counties,  and  the  legal  presumption  in  favor  of  the 
unassailed  boxes,  must  save  to  the  sitting  member  his  seat,  notwith- 
standing the  fact  that  glaring  and  reprehensible  frauds  were  committed 
in  connection  with  his  election. 

Upon  the  case  as  presented,  therefore,  your  committee  feel  themselves 
constrained  to  recommend  the  passage  of  the  following  resolutions : 

Resolved^  That  James  11.  Chalmers  was  not  elected  a  Kepresentative 
in  the  Fifty-first  Congress  from  the  second  Congressional  district  of 
Mississippi,  and  is  not  entitled  to  a  seat  therein. 

Resolved,  That  James  B.  Morgan  was  elected  a  Eepresentative  in  the 
Fifty-first  Congress  from  the  second  Congressional  district  of  Missis- 
sippi, and  is  entitled  to  retain  his  seat  therein. 


VIEWS  OF  MR.  HOUK. 


(1)  Presumption  of  correctness  of  returns. 

There  cau  be  no  "legal  presumption  in  favor  of  tbe  nnassailed  boxes," 
in  counties  where  the  election,  taken  as  a  whole,  was  not  honest. 

(2)  Counties  to  be  treated  as  wholes. 

Where  it  is  shown  that  there  was  a  corrupt  conspiracy  on  the  part 
of  the  county  officers  of  election  to  have  a  fraudulent  election  held 
throughout  the  county,  and  where  it  is  shown  that  the  conspiracy  was 
carried  out  in  a  number  of  precincts  of  the  county,  and  there  is  no  evi- 
dence in  regard  to  the  other  precincts,  the  presumption  of  legality  fails 
as  to  all  the  boxes,  and  the  whole  county  should  be  thrown  out. 

349 


VIEWS  OF  MR.  HOUK. 


[r.  HouK,  from  the  Committee  on  Elections,  submitted  the  following 

minority  report: 

It  is  with  regret  that  I  find  myself  compelled  to  differ  from  my  breth- 
m  on  the  Committee  of  Blections.  and  I  especially  regret  to  dissent 
rom  the  able  majority  i»eport  in  this  case,  because  in  all  except  its  con- 
clusions I  most  heartily  concur,  and  adopt  it  as  a  part  of  my  report. 
It  begins  ac  follows  : 
The  CommiUee  on  Elections  having  bad  under  consideration  the  contested  elec* 
UoD  case  of  James  R.  Chalmers,  contestant,?;.  James  B.  Morgan,  contOKtee,  from  the 
lecond  Congressional  district  of  Mississippi,  reports  that  it  is  not  proven  by  the 
record  that  tbecontestant  was  elected  northat  the  contestee  was  not;  butitisproven 
hat  the  election  in  question  was  characterized  by  frauds  disgraceful  to  our  civiliza- 
ion,  and  such  as  to  call  for  severe  animadversion  on  the  part  of  every  honest  man. 
The  election  in  question  was  held  on  the  6th  day  of  November,  1888.     The  con- 
Bstaut  was  the  Republican  nominee  for  Congress,  and  the  contestee  the  Democratic, 
"he  latter  was  returned  as  elected  by  a  plurality  of  8,161  votes,  a  plurality  at  least 
four  times  as  great  as  his  legal  plurality. 

Again,  the  report  says : 

In  two  counties  of  the  nine  constituting  this  Congressional  district,  in  which 
counties  there  are  twenty-three  polling  places,  the  election  is  conceded  to  have  been 
fair  and  honest.  In  the  remaining  seven  counties  there  are  ninety-seven  polling 
places.  The  validity  of  the  election  is  assailed  at  fifty-five  of  these,  but  not  success- 
fully, in  the  opinion  of  your  committee,  as  to  exceed  twenty-two  or  twenty-three. 

This  statement  shows  that  at  twenty-three  boxes  out  of  ninety-seven 
the  committee  find  fraud  enough  to  reduce  the  plurality  returned  for 
the  contestee  at  least  threefourtJis,  or,  to  put  it  in  figures,  from  8,161 
to  2,040.  So  that  by  an  examination  of  one-fourth  of  the  boxes  three- 
fourths  of  the  returned  plurality  is  wiped  out. 

I  have  examined  thirty-eight  boxes,  where  I  think  the  validity  of  the 
election  is  successfully  assailed  and  which  wipe  out  the  total  returned 
majority  for  the  contestee,  and  give  a  majority  to  the  contestant.  It 
is  greatly  to  be  regretted  that  the  majority  report  did  not  give  at  least 
the  names  of  the  boxes  which  were  considered  successfully  assailed, 
and  those  which  they  did  not,  so  that  the  House  could  decide  intelli- 
gently about  the  boxes  upon  which  the  majority  and  minority  report 
did  not  agree.  A  detailed  statement  of  the  boxes  which  I  consider 
successfully  assailed  will  bo  hereafter  given,  together  with  the  testi- 
paony  as  to  each  box. 

351 


352  CHALMERS   VS.    MORGAN. 

The  majority  report  then  says : 

The  Second  Congressional  district  of  Mississippi  consists  of  nine  counties,  Benton, 
De  Soto,  La  Fayette,  Marshall,  Panola,  Tallahatchie,  Tate,  Tippah,  and  Union.  No 
question  is  made  as  to  the  honesty  of  the  election  in  the  two  last  named,  and  no 
reason  has  been  shown  why  the  honest  voters  thereof  should  be  disfranchised. 

With  respect  to  the  other  seven  counties,  there  is  a  number  of  boxes  as  to  which 
no  testimony  was  taken,  but  it  may  safely  be  affirmed  that  in  not  one  of  these  coun- 
ties, taken  as  a  whole,  was  the  election  an  honest  one.  Fraud  in  various  forms,  in- 
cluding intimidation  of  voters,  corrupt  manipulation  of  registration,  stuffing  and 
stealing  of  ballot-boxes  and  illegal  voting  find  ample  illustration  in  all  of  ihem. 

And  concludes  as  follows : 

In  the  opinion  of  your  committee,  following  the  rules  of  law  to  which  they  have 
already  given  adht-rence,  the  conceded  fairness  of  the  election  in  Tippah  and  Union 
Counties,  and  the  legal  presumption  in  favor  of  the  unassailed  boxes,  must  save  to 
the  sitting  niembpr  his  seat,  notwithstanding  the  fact  that  glaring  and  reprehensible 
frauds  were  committed  in  connection  with  his  election. 

This  contains  two  startling  conclusions,  from  which  I  am  compelled 
to  dissent. 

First,  I  can  never  agree  that  there  can  be  any  "  legal  presumption 
in  favor  of  the  unassailed  boxes"  in  the  seven  counties,  where  the  com- 
mittee say  :  "  It  may  be  safely  afl&rmed,  that  in  not  one  of  these  coun- 
ties, taken  as  a  whole,  was  the  election  an  honest  one." 

Second,  I  can  never  agree  that  two  little  counties,  casting  only  one- 
fifth  of  the  vote,  shall  control  seven  other  counties,  casting  four-fifths 
of  the  vote.  There  were  cast  at  this  election,  10,795  votes  for  these 
two  candidates  and  of  these  3,520  were  cast  in  the  two  counties,  of 
Tippah  and  Union,  16,275  were  cast  in  the  other  seven  counties. 

In  these  seven  western  counties,  where  the  contest  is  made,  the  cou- 
testee  was  returned  a  i^lurality  of  6,465.  Take  from  this  three-fourths 
of  the  returned  plurality,  to  wit,  6,121,  which  the  majority  report  says 
were  fraudulently  returned,  and  it  leaves  to  the  contestee  in  these  seven 
counties  a  plurality  of  only  344,  where  he  was  returned  6,465.  This 
practically  wipes  out  those  seven  counties  and  gives  them  no  voice  in 
the  election.  To  permit  him  to  retain  his  seat  on  this  state  of  facts  is 
to  sustain  the  Mississippi  plan  and  allow  two  little  Democratic  counties 
casting3,520  votes  to  control  the  seven  Eepublican  counties  casting  16,275 
votes.  I  can  never  agree  to  this  and  especially  in  a  State  where  it  is 
proved  that  the  elections  are  held  by  machine  rule,  which  can  always 
maintain  its  power  if  the  majority  report  is  right,  by  permitting  fair 
elections  in  a  few  white  counties,  and  at  a  few  white  boxes  where  they 
have  a  majority,  and  by  utterly  corrupting  the  ballot-boxes  where  the 
majority  is  against  them. 

The  majority  report  again  says : 

Sufficient  has  been  shown  to  make  certain  that  the  election  methods  of  the  Second 
Congressional  district  of  Mississippi  include  such  as,  if  continued,  must  prove  de- 
structive of  popular  government.  Their  existence  calls  loudly  for  relief  by  law,  of 
such  a  kind  as  shall  secure  to  every  citizen,  without  distinction  of  race  or  color,  his 
constitutional  right  of  suflFrag". 

In  this  I  most  heartily  concur.  But  I  insist  that  before  we  talk 
about  making  laws  to  prevent  such  outrages  in  the  future,  we  should 
deal  with  the  outrages  now  before  us,  and  put  a  stop  to  the  further  en- 
joyment of  a  seat  in  Congress  obtained  by  election  methods  which  the 
majority  say,  "if  continued  must  prove  destructive  of  popular  govern- 
ment." 

Again  the  report  says  : 

In  many  places  the  ballot-boxes  were  removed  from  the  presence  of  the  United 
States  Bupervisor,  against  his  wiU  and  without  pretence  of  justificatioji  or  excuse. 


CHALMERS   VS.    MORGAN. 


353. 


Every  presumption  arises  against  those  guilty  of  such  open  and  express  violations 
of  a  statute  passed  in  the  interest  of  pure  elections.  And  where,  as  in  this  cape,  the 
practice  is  so  common,  it  is  hard  to  avoid  the  conclusion  that  it  is  the  result  of  con- 
cert for  a  fraudulent  i)urpose.  J 

This  is  equivalent  to  saying,  if  it  does  not  in  terms  say,  they  are 
morally  certain  that  the  contestee  was  not  elected.  And  the  explicit 
declaration  here  made  that  "  every  presumption  arises  against  those 
guilty  of  such  open  and  express  violations  of  the  statute  passed  in  the 
interest  of  pure  elections,"  completely  answers  and  overturns  the 
position  of  the  majority  in  regard  to  the  presumption  of  verity  as  to 
the  unexamined  boxes  assumed  by  them  in  order  to  save  contestee  his 
seat.  The  law  says  that  in  case  of  conspiracy  the  testimony  is  gener- 
ally circumstantial.  And  the  supreme  court  of  Mississippi  speaking 
of  circumstantial  evidence  on  a  trial  for  murder,  said : 

As  mathematical  certainty  is  not  attainable  in  such  cases,  moral  certainty  is  all  the 
law  requires.  Even  direct  testimony,  it  is  said,  does  not  afford  grounds  of  belief  of  a 
higher  nature.  Evidence  which  supplies  the  minds  of  the  jury  to  this  extent  consti- 
tutes full  proof  of  the  fiict  in  question  before  them.  This  moral  certainty  is  defim  d 
by  Chief-Justice  Shaw,  in  his  charge  to  the  jury  in  the  Webster  case,  to  be  a  cer- 
tainty that  convinces  and  directs  the  understanding  and  satisfies  the  reason  and 
judgments  of  those  who  are  bound  to  act-  conscientiously  upon  it.  (James  v.  The 
State,  45  Miss.  R.,  575.) 

Under  the  law,  as  I  understand  it,  the  facts  of  this  case  clearly  show 
that  the  contestee  was  not  elected. 
Now  let  us  look  to  the  question  whether  the  contestant  was  elected. 
The  majority  report  shows  that  it  "saves  to  the  contestee  his  seat"  by 
a  plurality  of  only  2,040,  and  that  it  does  this  on  "  the  legal  presump- 
tion in  favor  of  the  un  assailed  boxes."  The  report  does  not  name  the 
unassailed  boxes  as  they  are  called.  But  the  names  of  forty-four  boxes 
and  the  votes  returned  at  each  are  set  out  in  this  report,  and  the  major- 
ity will  admit  that  they  were  allowed  by  them  to  stand  as  unassailed, 
and  that  they  were  not  therefore  included  in  the  twenty-three  boxes 
which  reduced  the  plurality  of  the  contestee  three-fourths.  These  boxes 
where  the  contestant  had  269  plurality  over  Manning  give  to  the  con- 
testee 2,266  plurality. 

Unexamined  boxes. 


Morgan. 

Chalmers. 

Bonton  County  :* 

81 
87 
40 
127 
61 
5.4 
46 
81 
28 

13 

58 

54 

31 

Glen's  Mill 

1 

15 

Shawnee 

Hickorv  Flat 

13 

39 

g 

De  Soto  County :  t 

Lewisburgh .. 

605 

232 

155 
1-22 
159 
104 



30 

37 

90 

15  J 

Marshall  Cnnnty : } 

540 

312 

159 
76 
68 
30 
172 
li:i 

151 

87 

57 

32 

Bethlelioni , •. 

24 

Well's  Store 

55 

621 

4G0 

*Kecoiil,  page  740 

H.  Mis.  137- 


-23 


t  Kecord,  page  741 


|BecoFd,page743. 


354 


CHALMERS    VS.    MORGAN. 
Unexamined  boxes — Continued. 


Morgan. 


Cbalraera. 


Panola  County : 

Eureka 

Knij;ht , 

Benson's  Mill  ... 

Popes  

Williamson 

Pleasant  Grovo.. 
Pleasant  Monnt 


Tate  County  : 

Evansville 

Arkabutia 

Palestine 

Poa'.;ville 

Looxahoma . . . 

Tyro 

Thyatira 

Independence 


La  Fayette  County : 
La  Fayette  Springs 

Dallas 

De  Lay 

Paris    

nuuiphrey's  Mill .  - . 

Taylor  

Orwood  

Clear  Crock 

Free  Sprinfjs 

Sanders 

Alexander 


Makes  m%|ority  for  Chalmers  . 


101 

65 

8 

97 

58 

98 

78 

68 

42 

168 

70 

126 

100 

666 

413 

34 

205 
66 
122 
94 
109 
150 
164 


944 


177 
78 
78 
63 
54 
75 
54 
41 
70 
74 


Total 

Majority  for  Morgan 

Take  tliis  from  2.040  left  for  Morgan  and  gives  majority  for  Chalmers 
Add  rejected  votes 


860 


4,239 
2,206 


348 


18 


26 

1 

6 

36 

6 

53 

17 

44 

01 


208 


1,973 


226 
380 


606 


If  they  be  rejected  on  the  general  evidence  of  fraud  proved,  the  con- 
testant is  shown  to  have  226  plurality.  And  if  to  this  be  added  the  380 
votes  rejected  outside  of  La  Fayette  Couuty,  because  the  names  of  the 
voters  were  unlawfully  erased  from  the  poll-books,  it  gives  to  the  con- 
testant 606  plurality. 

The  minority  would  be  willing  right  here  to  submit  this  case  to  any 
court  in  the  country  with  a  full  assurance  of  obtaining  a  judgment  on 
the  facts  on  which  there  is  a  substantial  agreement.  There  is  substan- 
tial agreement  that  the  coutestee  was  returned  as  elected  by  a  plurality 
of  6,465  votes  in  the  seven  western  counties,  which,  in  a  fair  election,  are 
largely  Kepublican;  that  at  23  boxes  in  these  counties  6,121  of  this 
plurality  was  found  to  be  fraudulent;  that  this  reduces  the  total  re- 
turned plurality  to  2,040;  that  in  these  seven  counties  "  there  is  a  number 
of  boxes  as  to  which  no  testimony  was  taken,  but  it  may  be  safely 
affirmed  that  in  not  one  of  these  counties,  taken  as  a  whole,  was  the 
election  an  honest  one;"  that  at  these  unexamined  boxes  the  returned 
plurality,  for  the  contestee  is  2,266;  that  if  they  be  rejected  it  leaves 
a  plurality  for  the  contestee  of  226;  that  there  was  a  general  tiaroriz- 
ing  of  Eepublican  voters  in  this  district;  that  counsel  for  contestant 
stopped  taking  testimony  at  Hernando  to  avoid  bloodshed ;  that  his 
counsel  at  Oxford,  on  account  of  the  great  excitement  there,  did  not 
deem  it  prudent  to  take  testimony  at  that  places   that  the  taking  of 


CHALMERS   VS.   MOEGAN.  355 

testimony  at  Holly  Springs  was  prevented  by  the  refusal  of  the  Demo- 
cratic mayor  to  proceed,  after  he  had  agreed  to  take  the  testimony; 
that  the  contestant  exhausted  his  time  and  took  a  large  amount  of  tes- 
timony, but  was  delayed  by  dilatory  cross-examinations  by  counsel  for 
contestee.  On  this  statement  of  facts,  on  which  there  is  a  substantial 
agreement,  we  confidently  ask  the  judgment  of  the  House  in  favor  of 
the  contestant. 

The  principle  upon  which  the  majority  report  gives  verity  to  the  un- 
examined boxes  is  that  the  precinct  is  the  unit  and  each  must  stand  or 
fall  by  itself.  Wbile  this  is  true  in  Pennsylvania  it  is  not  true  in  Mis- 
sissippi, where  the  proof  shows  a  complete  election  machine. 

The  State  board  of  election  appoints  the  commissioners  of  each  county. 
The  commissioners  can  and  do  disfranchise  voters  at  their  will  by 
erasing  their  naines  from  the  poll-books  without  notice.  The  commis- 
sioners appoint  the  inspectors,  the  inspectors  appoint  the  clerks.  The 
cleT"ks  are  the  tools  of  the  inspectors,  the  inspectors  of  the  commission- 
ers, and  the  commissioners  of  the  State  board,  and  each  does  the  bid- 
ding of  his  master. 

The  majority  report  admits  this  when  it  says : 

Your  committee  find  that  there  were  other  methods  pursued  in  the  Second  Con- 
gressional district  of  Mississippi  "to  shut  down  "  upon  the  Kepublican  voters,  which 
were  in  contravention  of  law.    Among  these  were: 

The  constitution  of  partisan  election  boards,  having  no  members  other  than  Dem- 
ocrats. 

The  appointment  in  many  cases  of  parties  on  such  boards  to  represent  the  Eepnb- 
licans,  who,  by  reason  of  ignorance  and  illiteracy  were  not  "competent  and  suitable 
men." 

TLe  unlawful  removal  of  ballot-boxes  from  the  polling  places,  and  from  the  view 
of  the  United  States  supervisors. 

The  illegal  erasure  from  the  registration  list  of  duly  qualified  and  registered  voters, 
and  the  refusal  to  permit  them  to  vote. 

The  stealing  of  ballot-boxes. 

With  this  pertect  system  established  it  would  be  a  refinement  of  legal 
technics  to  tal  k  about  the  precincts  being  units,  or  about "  a  legal  presump- 
tion in  favor  of"  the  unexamined  boxes,  and  more  especially  when  fur- 
ther examination  was  prevented  by  obstruction  interposed  by  the 
friends  and  agents  of  the  contestee. 

The  majority  report  not  only  fails  to  give  any  detailed  statement  of 
the  boxes  considered  to  be  successfully  assailed,  but  fails  to  state  any 
rule  of  law  which  has  governed  their  actions  in  at  least  their  seeming 
departure  from  the  rules  established  in  Featherstone  v.  Gate  and  Threet 
V.  Clarke. 

It  makes  a  very  proper  and  forcible  arraignment  of  the  district  for 
fraud,  and  then,  without  any  figures,  asks  the  House  to  indorse  a  con- 
clusion which  is  apparently  in  direct  conflict  with  the  facts  stated  and 
with  the  reasoning  of  the  report. 

The  failure  to  make  a  detailed  statement  of  the  frauds  adjudged, 
leaves  the  contestant  in  doubt  as  to  which  of  his  charges  have  been 
sustained,  leaves  the  contestee  at  a  disadvantage  in  preparing  a  de- 
fense, and  leaves  the  House  without  the  specific  information  it  has  a 
right  to  expect  from  its  committee. 

And  it  leaves  the  minority  uncertain  as  to  which  of  these  thirty-eight 
boxes  adjudged  fraudulent  by  them  are  included  in  the  twenty-three 
boxes  adjudged  by  the  majority  to  have  been  successfully  assailed. 

This  narrows  the  discussion  therefore  mainly  to  the  question  of  law 
presented  as  to  whether  the  import  of  verity  shall  be  given  or  not  to 
the  acts  of  the  election  officers  in  this  district.  Upon  that  depends 
whether  the  unexamined  boxes  shall  be  counted  oruot,  and  whether  the 


356  CHALMERS   VS.    MORGAN. 

voters  rejected  outside  of  La  Fayette  County  shall  be  counted  or 
not. 

The  import  of  veritv  given  to  the  acts  of  officers  is  a  presumption  of 
law  arising  from  the  belief  that  all  officers  do  their  duty,  and  in  a  com- 
munity where  men  respect  and  obey  the  law  this  is  a  correct  presump- 
tion. But  in  a  community  where  those  who  hold  the  election  believe 
that  it  is  necessary  to  preserve  white  civilization  to  suppress  the  negro 
vote,  or  a  majority  com})Osed  of  i>egroes  and  a  few  wliites,  and  where  at 
every  box  examined  it  is  found  that  the  election  officers  have  Iraudu- 
leutly  accomplished  this  purpose,  the  presumption  of  common  law  and 
common  sense  is  that  men  who  believe  the  same  thing,  who  are  in  the 
same  organization,  who  are  selected  for  the  same  purpose  and  phiced  in 
the  same  circumstances,  will  do  the  same  thing.  Hence,  fraud  being 
found  at  every  box  examined,  and  further  investigation  being  preveutea 
by  the  acts  of  the  friends  of  the  contestee,  the  import  of  verity  is  taken 
away  from  the  acts  of  the  officers  who  made  the  returns  from  unexamined 
boxes  and  of  those  who  erased  the  names  of  voters  from  the  poll 
books. 

To  determine  this  question  it  is  necessary  to  decide  first  whether 
there  was  or  was  not  any  fixed  i)lan  or  conspiracy  in  Mississip[»i  to 
carry  the  election  without  regard  to  the  vote. 

The  evidence  in  support  of  an  allegation  of  a  conspiracy  is  generally  circunistan- 
tial ;  and  it  is  not  necessary  to  prove  any  direct  concert,  or  eveu  any  meeting  of  the 
conspirators,  as  the  usual  fact  of  conspiracy  may  he  collected  from  the  collateral  cir- 
cumstances of  the  case.  Although  the  common  design  is  the  root  of  the  charge,  yet 
it  is  not  necessary  to  prove  that  the  i)artie8  came  together  and  actually  agreed  in 
terms  to  have  the  common  design,  and  to  X'lirsue  it  by  common  means,  and  so  to  carry 
it  into  execution,  because  in  many  cases  of  the  most  clearlj'-established  conspiracies 
there  are  no  means  of  proving  any  such  thing.  If,  therefore,  two  ptirsons  pursue  by 
their  acts  the  same  object,  often  by  the  same  means,  one  performing  one  part  of  an 
act,  and  the  other  another  part  of  the  same  act,  so  as  to  complete  it,  with  a  view  to 
the  attainment  of  the  object  they  were  pursuing,  the  jury  are  at  liberty  to  draw  the 
conclusion  that  thoy  have  been  engaged  in  a  conspiracy  to  efiect  that  object.  Arch- 
bold's  Cr.  Practice,  P.  L.  volume  3,  star  page  62'^,  note. 

The  fundamental  question  in  this  case  is  one  of  law  and  evidence. 

First,  as  to  how  far  the  presumption  of  verity  can  sustain  returns  at 
boxes  not  examined  for  want  of  time  and  because  of  obstacles  inter- 
posed by  the  contestee,  when  fraud  is  shown  at  every  box  examined. 

Second,  as  to  how  far  the  testimony  of  ticket  distributors  can  prove 
votes,  when  to  guard  against  fraud,  men  are  selected  to  issue  tickets 
and  take  down  the  names  of  voters.* 

Common  law  is  common  sense,  and  a  few  principles  of  common  sense 
applied  to  this  case  will  show  beyond  dispute  that  the  contestant  was 
elected.  The  import  of  verity  given  to  the  returns  made  by  election 
officers  is  a  presumption  of  law  arising  from  the  belief  that  all  officers 
do  their  duty,  and  in  a  community  where  law  is  respected  and  obeyed 
this  is  the  correct  rule. 

But  in  a  community  where  the  party  in  power  believes  and  openly 
declares  that  it  is  not  onlj-  justifiable  to  suppress  the  negro  vote,  but 
that  this  is  essential  to  preserve  their  civilization,  and  where  that  party, 
under  laws  evidently  enacted  for  that  purpose  by  a  systematic  plan  of 
erasing  the  names  of  voters,  and  appointing  all  election  officers,  can 
make  returns  to  suit  themselves,  common  sense  teaches  that  no  import 
of  verity  can  attach  to  such  returns. 

The  majority  report  after  speaking  of  the  various  frauds  in  this  dis- 
trict says : 

If  we  may  judge  from  the  evidence,  this  state  of  things  is  to  be  accounted  for  by  the 
existence,  in  that  district,  of  a  different  standard  of  morals  from  that  which  is  gener- 
ally accepted  as  the  correct  one  by  commuuities  recognized  as  moral. 


CHALMERS    VS.    MORGAN.  357 

The  last  report  of  this  committee,  in  McDuffie  vs.  Turpiii,  sustaius 
this  view  ol  tlic  law  as  follows  : 

In  considering  the  evidence  witli  reference  to  particular  precinct  returns,  it  is  first 
necessary  to  inquire  by  whom  the  election  was  held,  in  order  to  determine  what 
weight  should  be  given  to  the  returns.  Returns  are,  as  a  I'ule,  prima  facie  evidence 
of  the  result;  but  if  the  integrity  of  the  inspectors  is  in  any  way  impeached,  either 
by  showing  that  their  character  is  such  as  to  cast  suspicion  on  their  acts,  or  that 
their  belief  is  that  frauds  upon  elections  are  justifiable,  or  that  the  manner  of  their 
selection  was  such  as  to  indicate  a  purpose  to  procure  a  false  statement  of  resnlts, 
then  the  returns  lose  much  of  the  weight  that  would  otherwise  attach  to  them. 
English  vs.  Peele,  Forty-eighth  Congress.     In  this  case  the  committee  says: 

'"when  ouce  the  taint  of  fraud  or  unreliability  is  attached  to  the  ofiicial  count  its 
value  is  gone,  and  we  must  look  to  other  sources  for  better  information." 

This  is  true,  not  only  as  to  one  precinct,  but  as  to  counties,  as  was  held 
by  the  minority  report  in  McDufie  vs.  Davidson,  and  by  the  reports  of 
this  committee  in  Featherstoa  vs.  Cate,  and  Threet  vs.  Clark,  as  will 
heieatter  be  shown.  And  this  view  of  the  law  is  fully  sustained  by  the 
supreme  court  of  Mississippi  in  the  case  of  Word  vs.  Sykes.  The  re- 
I)orter  in  the  statement  of  the  case  says : 

The  ])etition  farther  alleges  that  by  conspiracy  between  Sykes  and  the  Democratic 
executive  committee,  the  State  board  of  commissioners  were  induced  to  appoint  three 
Democrats,  friends  and  partisans  of  Sykes,  election  commissioners  for  Monroe 
County,  who  appointed  Democrats,  friends  and  partisans  of  Sykes,  election  officers 
at  each  of  the  voting  precincts  of  the  county. 

The  judge  delivering  the  opinion  of  the  court  said  : 

"No  mere  ocr'ssion  or  irregularity  on  the  part  of  the  returning  officers  can  result 
in  setting  aside  the  certificate.  Anj' practice  which  may  be  thought  purposely  to 
have  been  resorted  to  for  influencing  the  result  will  have  that  ettect,  if  those  who 
made  the  return  knew  of  or  sanctioned  it.  Speaking  for  myself  alone  and  not  for 
the  court,  I  think  that  the  prima  facie  presumption  of  correchiess  in  the  certificate 
fails  whenever  it  is  shown  affirmatively  that  as  alleged  in  this  case  one  side  only 
participated  in  making  out  the  returns  and  the  other  side  was  excluded  from  con- 
ducting the  election  and  making  up  the  cojint;  in  such  case,  to  speak  more  correctly, 
I  tbink  the  prima  facie  presumption  of  correctness  never  attaches.  We  all  think 
that  it  fails  where  it  is  shown  that  there  was  any  intentional  wrong  on  the  part  of 
those  who  made  the  count."     (Word  V8.  Sykes,  61  Miss.  65,  666-667.) 

It  will  be  observed  that  the  judge  in  his  individual  opinion  fully  sus- 
tained the  report  of  this  committee  in  the  case  of  Threet  vs.  Clark,  and 
that  the  whole  court  say,  "Any  practice  which  may  be  thought  pur- 
posely to  have  been  resorted  to  for  influencing  the  result"  will  vitiate 
the  returns.  The  only  question,  then,  is  in  this  case.  Did  the  party  in 
power  select  all  the  election  ofiBcers  to  suit  themselves,  and  deny  to  the 
other  party  officers  asked  for  by  them,  and  was  this  purposely  done  to 
influence  the  result?  That  the  Republicans  were  denied  any  commis- 
sioners of  election  asked  for  by  them,  and  that  this  has  been  done  con- 
tinuously for  years,  is  abundantly  proved  ;  is  not  denied  by  the  contestee 
in  this  case,  and  is  admitted  in  the  brief  of  another  contestee  from  Mis- 
sissippi. (See  Catchings's  brief,  p.  260.)  That  the  Republicans  were 
denied  the  inspectors  they  asked  for  in  De  Soto,Tallahatchee,  and  Tate 
Counties,  and  that  this  has  been  constantly  done  for  years,  will  be  seen 
from  the  extracts  of  testimony  which  we  will  give  when  we  come  to 
speak  of  these  counties  separately. 

In  the  case  of  Threet  vs.  Clark,  this  committee  said  : 

The  committee  is  of  the  opinion  that  where  the  course  is  systematically  pursued  of 
appointing  on  the  election  boards  to  represent  the  minority  or  opposition  party  per- 
sons not  indorsed  by  that  party,  and  as  to  whose  loyalty  to  the  party  whose  interests 
they  are  expected  to  guard  there  is  a  question,  or  of  appointing  persons  who  are  un- 
able to  read  and  write,  when  there  would  bo  no  dlfflcuity  in  finding  men  well  quali- 
fied in  those  respects,  this  ought  of  itslf  to  be  considered  evidence  of  conspiracy  to 
defraud  on  the  part  of  the  election  officers.  This  was  clearly  a  violation  of  the  law  on 
the  part  of  the  board. 


358  CHALMERS    VS.    MORGAN.  ' 

The  language  here  is  stroDg,  clear,  and  positive,  and  announces  the 
true  rule  of  law,  as  sustained  by  the  judge  in  the  case  of  Word  vs.  Sykes. 
But  the  recent  report  of  McDuffie  vs.  Turpin  modifies  this  slightly,  as 
follows: 

When  the  law  provides  that  each  of  the  two  political  parties  shall  have  representa- 
tiou  on  the  election  board  of  inspectors,  it  is  a  provision  to  prevent  dishonest  parti- 
sans from  making  false  returns;  and  in  such  case  the  appointment  of  men  incompe- 
tent to  determine  whether  the  return  is  honest  or  not  to  represent  the  party  opposed 
to  the  appointing  power  tends  to  prove  an  intent  to  prevent  that  watchfulness 
intended  to  be  secured  by  the  statute,  and  raises  a  strong  suspicion  (if  it  "does  not 
fully  prove)  of  conspiracy  to  falsify  the  returns. 

What,  we  would  ask,  is  the  practical  effect  of  this  modification,  and  espe- 
cially what  is  the  practical  effect  of  it  in  a  case  like  this,  where  thecon- 
testee  is  returned  8,1  Gl  majority,  and  where  the  proof  taken  as  confessed 
by  the  majority  report  shows  fraud  sufficient  to  reduce  that  majority  to 
2,040,  and  when  further  proof  was  ])revented  by  the  intimidation  of  con- 
testant's counsel  and  other  obstructions  by  the  Iriends  of  the  contestee? 
It  is  simply  to  give  to  thecontestee,  instead  of  the  contestant,  the  bene- 
fit of  the  doubt  as  to  the  boxes  which  could  not  be  reached  upon  the  pre- 
sumption that  the  election  officers  here  were  unlike  their  brethren  of 
the  same  party,  where  the  frauds  were  clearly  proven,  upon  a  presumj)- 
tion  of  law,  when  common  sense  teaches  that  the  proper  pre8umj)tion  is 
that  they  were  all  moved  by  the  same  impulse,  to  count  out  the  Repub- 
lican majority.  But  assuming  that  this  unfair  and  illegal  appointment  of 
election  officers  only  "  raises  a  strong  suspicion  (if  it  does  not  fully 
prove)  of  conspiracy  to  falsify  the  returns,"  thispresumption  is  made  full 
l)roof  by  the  well-known  plans  in  Mississippi  and  by  the  proof  made  in 
this  case  against  the  contestee  himself. 

As  to  the  plan  in  Mississippi,  it  is  clearly  shown  that  the  election  ma- 
chinery is  entirely  in  the  hands  of  one  party,  and  that  the  law  makes  a 
fearful  engine  of  fraud  when  in  the  hands  of  men  who  are  determined  to 
carry  the  election  at  all  hazards.  The  election  commissioners  have  power 
and  do,  without  notice,  disfranchise  all  the  Republican  voters,  or  as 
many  as  they  may  think  necessary,  by  erasing  their  names  from  the  poll- 
books.  And  the  law  is  purposely  framed  to  perpetrate  fraud,  because 
no  notice  is  given  to  the  party  who  is  thus  disfranchised.  They  can  and 
do  select  men  as  inspectors  who  they  know  have  no  scruples  against 
making  false  returns,  and  they  can  and  do  appoint  ignorant  men  to 
represent  the  Republican  party,  and  thus  can  and  do  carry  the  electiotf 
to  suit  themseh^es.  When  all  this  is  done  it  is  proof  in  itself  that  it  was 
done  with  a  purpose  to  effect  the  result,  and  to  ask  further  proof  would 
be  to  ask  us  to  prove  an  axiomatic  fact.  And  yet  the  majority  of  this 
committee  sa-y  they  can  see  no  evidence  of  conspiracy.  It  is  well  known 
that  there  is  amajority  of  25,000  negro  voters  in  Mississippi,  and  a  num- 
ber of  white  Republicans,  yet  it  is  equally  well  knowu  that  Democratic 
officials,  with  this  election  machinery,  count  a  majority  for  the  Demo- 
crats of  from  30,000  to  50,000  at  every  election.  And  this  is  indorsed  by 
every  Democratic  speaker  and  Democratic  newspaper  in  Mississippi 
upon  the  ground  that  it  is  essential  to  preserve  their  civilization.  This 
of  itself  is  evidence  of  a  conspiracy  in  that  State. 

But,  it  is  unnecessary  to  look  to  general  proof  because  the  proof  of  a 
conspiracy  to  suppress  the  negro  vote  in  this  district  is  clearly  shown 
by  the  declarations  of  the  contestee  and  his  supporters,  and  by  acts 
done  by  his  supporters  in  his  presence  or  when  he  was  near  at  hand.  It 
is  proved  that  in  a  canvass  for  a  nomination  to  Congress  to  recommend 
himself  to  the  prevailing  sentiment,  he  declared  on  the  stump  that  he 
was  as  much  in  favor  of  cheating  the  negro  out  of  his  vote  as  any 


CHALMEES    VS.    MORGAN.  359 

other  man.  (Rec,  p.  954.)  That  in  another  speech  he  said  that  he 
and  othcTS,  in  1875,  had  buckled  on  their  six-shooters,  and  with  clubs 
in  their  hands,  had  knocked  down  the  negro  leader  at  the  polls,  and  he 
advised  this  to  be  done  again.  (Kec,  p.  574.)  It  is  further  proved  that 
La  Fayette  County  was  given  up  to  be  lost  to  the  Democrats  one  week 
before  the  election,  and  that  the  contestee  was  sent  there  to  organize 
it,  and  that  he  was  there  when  the  conspiracy  was  formed  and  carried 
out  to  disfranchise  the  Eepublican  voters  by  erasing  their  names  from 
the  poll-books.  And  it  is  fair  to  presume  that  he  was  the  author  of  or 
a  participator  in  this  plan,  from  his  previous  declarations  and  from  the 
fact  shown  in  the  history  of  this  district  that  this  same  outrage  was 
praticed  at  his  home  in  De  Soto  County  in  1880,  for  which  the  election 
commissioners  were  tried  and  convicted  in  the  United  States  Court. 
(See  Dig.  El.  1880  to  '82,  p.  313.) 

It  is  further  proved  that  at  his  home  a  military  company,  armed  with 
Winchester  rifles,  was  organized  for  election  purposes,  and  that  he  was 
present  when  a  squad  of  this  company  was  sent  to  Nesbit's  on  the  day 
of  election  to  remain  during  the  count,  and  prevent  a  riot  of  the  large 
majority  of  negroes,  who  believed  they  were  being  falsely  counted  out. 

The  troops  were  telephoned  for  by  Democrats,  when  if  the  count  was 
fair  the  Democrats  were  in  the  majority  and  needed  no  help  from  troops. 
The  ]  roof  shows  192  negroes  and  46  white  voters  there  and  the  negroes- 
would  have  had  no  cause  for  riot  unless  they  believed  their  votes  were 
being  stoler. 

It  is  further  proved  that  the  certified  list  of  voters  was  destroyed  at 
his  home,  by  one  of  the  Democratic  commissioners  of  election.  It  is 
further  proved,  by  his  attorney  and  witness,  A.  S.  Buchanan,  that  he 
(Buchanan)  believed  that  Republican  rule  in  Mississippi  was  worse  than 
ballot-box  stuffing ;  or  to  use  his  own  language,  he  says  : 

I  thiuk  anything  like  wholesale  ballot-box  stuffing,  or  fraud  in  elections,  is  almost, 
if  not  qiiite  as  greatly  to  be  deplored  aa  Republican  rule  would  be.     (Rec,  p.  837. ) 

And  one  of  his  inspectors  of  election,  W.  W.  McMahon,  who  at  Col- 
lege Hill  returned  285  for  Morgan  and  26  for  Chalmers,  where  281 
negroes,  and  only  30  white  men  voted,  admitted  on  examination  that  he 
did  not  believe  a  negro  should  be  allowed  to  vote.  (Eec,  p.  902.)  But 
he  did  not  deny  the  following  conversation,  which  was  proved  on  him 
by  L.  N.  Word.    (Kec,  p.  556.) 

Q.  Did  you  have  any  conversation  with  these  judges  of  election  through  the  county 
of  La  Fayette  as  to  the  way  they  proposed  to  carry  things,  and  did  carry  them  at  the 
last  election  ? — A.  Yes,  sir;  yes,  sir;  it  was  since  the  election;  I  were  in  the  back 
room  of  Brenner  &  Wallace's  store  at  Oxford,  and  we  were  discussing  this  erasure, 
and  Mr.  McMahon,  who  was  an  inspector  of  the  election  at  College  Hill,  walked  in ; 
I  appealed  to  him,  and  asked  him  if  he  thought  it  was  right.  He  said  that  bethought 
anything  was  right.  He  says,  "My  God,  anything  is  right  to  keep  ahead  of  the 
negro.'  "  Well,"  I  said,  "  there  was  no  negro  wanted  in  this  canvass."  "  That  don't 
make  a  damn  bit  of  difference;  the  negroes  voted  for  Chalmers,  and,  by  God,  if  we 
can't  stuff 'um  out,  wee'l  shoot  'um  out;  we  don't  give  a  damn  how  we  get  'um  out, 
but  we  are  going  to  control  'um."  That  is  his  words  as  near  exactly  as  I  can  get  it ; 
that  was  the  meaning  of  them. 

With  such  declarations  of  the  belief  and  intentions  of  the  contestee 
and  his  supporters  in  this  district,  it  would  be  encouraging  crime  to 
give  the  import  of  verity  to  returns  made  in  such  a  district  and  by 
such  officers  at  boxes  not  examined,  when  the  failure  to  examine  them 
was  brought  about  by  the  acts  of  contestee  and  his  friends. 

A  fair  test  of  the  injustice  of  relying  on  such  a  presumj)tion  is  found 
in  the  three  counties  of  La  Fayette,  Tallahatchie,  and  Tate,  in  two  of 


360  CHALMERS    VS.    MORGAN. 

which,  inspectors  were  denied  to  Republicans,  and  in  the  other,  La  Fay- 
ette, a  conspiracy  to  erase  the  names  of  voters  from  the  poll  books  was 
clearly  shown.  In  these  counties  the  contestant  is  returned  but  916 
A'otes,  where  in  1882  at  a  reasonably  fair  election  he  received  3,808  votes. 
In  1882  he  had  in  these  counties  a  majority  of  643  over  Manning,  and 
this  time  Morgan  is  counted  a  majority  of  3,706  over  him.  There  are 
42  boxes  in  these  three  counties,  and  only  12  could  be  examined  in  the 
limited  time  allowed  and  under  the  obstructions  interposed  by  the 
Iriends  of  contestee.  But  in  these  12  boxes  fraud  enough  is  uncovered 
to  add  1,350  votes  to  Chalmers,  ahd  take  from  Morgan  1,494,  making  a 
change  of  2,844.  Take  this  from  the  returned  majority,  3,706,  and  it 
falls  to  822.  And  yet  it  is  said  this  822  must  be  counted  for  the  con- 
testee on  the  presumption  of  law  that  the  officers  at  the  unexamined 
boxes  made  honest  returns.  To  do  this  would  be  to  otter  a  ])remium 
for  fraud  in  proportion  to  its  magnitude,  and  "save  to  the  sitting  mem- 
ber his  seat  in  Congress,"  obtained  by  the  suppression  of  liepublican 
votes  and  held  by  the  suppression  of  testimony. 

The  minority  report  in  McDuffie  vs.  Davidson,  signed  by  three  mem- 
bers of  the  majority  of  this  committee,  including  the  chairman,  held 
that  where  there  was  evidence  of  a  conspiracy  to  carry  tbe  election  in 
four  counties  out  of  live,  the  four  shoulil  be  thrown  out,  and  the  contest- 
ant seated  on  the  i)roof  in  the  fifth.  In  this  case  there  are  but  three 
counties  out  of  nine  which  were  asked  to  be  rejected,  and  if  this  is  done 
the  contestant  is  elected  by  a  large  majority,  as  will  be  seen  here- 
after from  the  discussion  of  each  county  separately.  But  it  is  now  said 
that  this  decision  of  McDuffie  vs.  Davidson  is  wrong ;  that  each  box 
must  be  considered  separately,  and  that  a  whole  county  can  not  be 
thrown  out.  If  this  was  true  in  any  other  State,  it  can  not  be  true  in 
Mississippi,  where,  as  we  have  said,  each  county  is  a  unit  in  the  election 
machinery,  and  every  box  is  manipulated  at  the  dictation  of  the  countj" 
commissioners  of  election,  as  heretofore  stated. 

It  is  manifest  that  the  contestant  took  his  proof  and  prepared  his 
case  under  the  well-founded  belief  that  the  members  who  signed  that 
minority  report  believed  it  to  be  law,  and  would  so  hold  again,  and  I 
for  one  stand  by  it  yet.  This  committee  has  twice  indorsed  the  doc- 
trines there  held  as  to  whole  counties  at  this  session.  In  the  case  of 
Feaiherstone  vs.  Cate,  the  conspiracy  to  carry  the  election  in  Crittenden 
County  in  September,  and  the  procurement  of  fraudulent  ballot  boxes 
at  that  time,  was  not  only  held  to  extend  to  the  whole  county,  but  to 
the  November  election,  as  a  continuing  conspiracy  because  some  of 
these  same  boxes  were  used  at  some  of  the  precincts.  In  the  case  of 
Threet  vs.  Clark,  this  committee  held  that  the  action  of  the  commis- 
sioners of  election  of  a  whole  county  in  refusing  to  api)oint  proj^er  in- 
S])ectors  at  each  box  was  in  itself  evidence  of  a  conspiracy  to  defraud. 
To  hold  now  that  a  county  can  not  be  rejected  as  a  whole,  or  that  all 
the  boxes  in  a  county  can  not  be  tainted  by  the  action  of  the  commis- 
sioners who  control  the  machinery  of  elections  of  the  county,  is  to  re- 
verse the  law,  as  stated  in  all  these  cases,  and  I  can  not  consent  to  it. 

But  it  is  not  essential  to  tiiis  case  that  any  county  should  be  thrown 
out  if  the  rules  laid  down  in  the  case  of  Featherstone  vs.  Cate  are  fol- 
lowed, as  will  be  hereafter  seen. 

The  report  of  McDuffie  rs.  Turpin  begins  with  a  reference  to  the  cen- 
sus o^  1880,  to  show  that  there  are  a  majority  of  colored  voters  in  that 
district.  The  contest  in  this  case  is  tnade  entirely  in  the  seven  western 
counties  of  the  second  district  of  Mississii)])i,  and,  ai>i)lyiug  the  same 
rule  here,  the  census  shows  2,600  majority  of  colored  voters  in  these 


CHALMERS   YS.    MORGAN.  361 

counties,  and  the  majority  report  in  this  case  says  tliis  was  a  Republi- 
can district  nntil  the  adoption  of  the  shotgun  policy. 

The  IMcDiifJie  vs.  Turpin  report  refers  to  the  histcr^'^  of  that  district, 
and  gives  election  returns  belore  the  political  revolution  of  1875.  to 
show  that  district  was  then  Eepnblican.  Ajjplying  the  same  rule  here,  it 
is  shown  that  Grant  had  in  these  counties  a  majority  of  3,376  in  1872, 
that  Ames  had  a  majority  of  3,026  in  1873,  and  Chalmers  had  a  major- 
ty  of  3,048  over  Manning  in  1882.  These  facts  and  others  in  the  record 
show  there  are  a  large  number  of  white  Eepublicans  in  this  district. 
But  the  contestant  here  presents  another  and  more  recent  test  of  the 
true  vote  in  three  of  these  seven  counties.  In  De  Soto,  Marshall,  and 
Tate  there  were  in  1887  hotly  contested  primary  elections  for  Demo- 
cratic nominations  which  necessarily  brought  out  the  full  Democratic 
vote,  as  a  nomination  meant  that  the  nominee  should  be  counted  in, 
as  was  shown  by  the  gentleman  from  Minnesota  (Mr.  Comstock)  in  his 
able  speech  in  the  McDuffie  case.  At  these  primaries  there  were  only 
3,873  Democratic  votes,  and  yet  in  the  same  counties  the  next  year  the 
contestee  is  counted  6,253.  And  to  show  that  3,873  was  the  full  Dem- 
ocratic vote  of  these  counties,  it  is  just  386  more  votes  than  Colonel 
Manning  received  in  the  same  counties  at  a  fair  election. 

The  report  of  McDuffie  vs.  Turpin  refers  to  former  contested-election 
cases  in  that  district,  to  show  fraud  and  a  fixed  purpose  of  the  Demo- 
crats amounting  to  a  conspiracy  to  defraud.  Applying  the  same  rule 
in  this  case,  all  manner  of  frauds  are  shown  in  this  district  in  the  case 
of  Buchanan  vs.  Manning.  The  report  in  that  case,  presented  by  Mr. 
Thompson,  and  which  was  originally  adopted  as  the  report  of  the  com- 
mittee, sums  up  the  frauds  in  that  case  as  follows,  and  comparing  it 
with  the  summary  of  frauds  made  in  the  majority  report,  it  will  be  seen 
that  most  of  them  are  repeated  in  this  case. 

(1)  The  action  of  the  governor  and  State  board,  their  refusal  to  allow  the  opposi- 
tion party  to  name  any  of  the  election  conimisaiouers. 

(2)  The  same  action  on  the  part  of  the  county  commissions  in  appointing  the  pre- 
cinct inspectors. 

(3)  The  appointment  of  corrupt  and  illiterate  officers. 

(4)  The  systematic  adjournments  of  the  election  without  sufficient  cause. 

(5)  The  premature  closing  of  the  registration-books  and  refusal  to  register  Re- 
publican voters,  the  erasing  of  names  of  Republican  voters  already  registered,  and 
the  forgery  of  poll  boolis. 

(<>)  The  failure  to  openly  count  the  vote  at  the  closing  of  the  polls. 

(7)  The  changing  of  polling  places. 

(8)  The  abandonment  of  ballot-boxes  during  adjournment,  and  of  their  carrying 
off  to  private  houses  during  adjournment. 

(9)  The  interference  with  and  exclusion  of  United  States  supervisors. 

(10)  The  fact  that  these  practices  were  in  counties  having  large  Republican  majori- 
ties are  conclusive  evidence  of  a  conspiracy  to  defraud. 

This  being  a  conspiracy  to  defraud,  there  being  proof  of  fraud  at  a  number  of  pre- 
cincts, and  the  illiterate  inspectors  leaving  the  door  open  to  unlimited  fraud,  and 
there  being  no  proof  by  contestee  of  good  faith  in  the  election,  it  must  be  set  aside. 
(Dig.  Elect.  Cases  1880  to  1882,  page  337.) 

The  report  of  McDuffie  vs.  Turpin  refers  to  the  suppression  of  testi- 
mony in  that  case  by  dilatory  cross-examinations  as  follows : 

The  printed  record  discloses  another  unpardonable  attempt  to  suppress  testimony. 
This  attempt  was  the  deliberate  act  of  contestee  and  his  attorneys.  Frivolous  ob- 
jections, ffovering  whole  pages  of  the  record,  and  cross-examinations  of  witnesses 
which  would  disgrace  a  police-court  shyster,  were  the  means  by  which  contestee  and 
his  attorneys  sought  to  use  up  the  time  allowed  to  contestant  in  which  to  take  testi- 
mony to  prove  his  allegations.  This  conduct  resulted,  beyond  a  reasonable  doubt, 
from  a  deliberate  purpose  to  suppress  as  much  of  contestant's  evidence  as  possible, 
and  prevent  a  disclourse  of  the  whole  truth. 


362  CHALMERS    VS.    MORGAN. 

OBSTRUCTIONS  TO   THE   TAKING   OF   'JKSTIMONY. 

Applying  the  same  rule  here,  it  will  be  seen  that  the  contestant  in 
this  case  suffered  more  from  the  suppression  of  testimony  by  contestee 
and  his  friends.  At  Nesbit's,  where  there  was  long  and  insulting  cross- 
examination  of  the  witnesses,  counsel  for  contestee  dared  the  ofiScer 
taking  testirnonj-  to  go  on  at  night  (Kec,  p.  1029).  At  Hernando,  on  the 
very  day  that  counsel  for  contestant  commenced  taking  testimony,  the 
news  came  of  the  assassination  of  Clayton,  which  was  a  fearful- warning 
to  contestant  and  his  friends  as  to  what  they  might  expect  if  they  con- 
tinued to  prosecute  his  contest,  and  the  evidence  shows  that  the  appear- 
ances ot  danger  were  so  great  that  counsel  for  contestant  ceased  to 
take  testimony  there.    (Kec,  pp.  164  and  998.) 

This  was  folFowed  by  a  threatening  publication  in  the  Globe,  a  Dem- 
ocratic paper  at  Oxford,  saying: 

If  Chalmers  came  there  and  did  right  he  would  have  no  tronblo,  hnt  if  he  acted  as 
he  did  in  De  Soto  County,  he  had  hetter  pack  his  traps  and  get  away.  (See  Rec,  p. 
1040.) 

Mr.  Montgomery,  his  attorney  there,  had  been  removed  from  a  lucra- 
tive position  as  principal  of  a  public  school  because  he  had  made  a  Ke- 
publican  speech  in  Illinois,  and  he  says  the  excitement  against  him  and 
Chalmers  there  was  so  great  that  he  deemed  it  imprudent  to  take  tes- 
timony there  (Eec,  p.  593).  It  is  proved  that  the  circuit  clerk  of  Tal- 
lahatchie County  delayed  giving  him  copies  of  the  precinct  returns  of 
that  county  until  it  was  too  late  for  him  to  take  testimony  in  that 
county.  Again,  his  witnesses  in  La  Fayette  County  were  not  allowed  to 
examine  the  registration  books  that  they  might  compare  them  with  the 
mutilated  poll-books  until  after  they  had  testified  in  chief.  At  Holly 
Springs  he  was  prevented  from  taking  testimony  by  the  refusal  of  the 
Democratic  mayor  to  go  on  with  the  testimony  on  account  of  the  action 
of  the  counsel  for  contestee,  and  thus,  practically,  his  counsel  were 
driven  from  the  State  and  compelled  to  take  testimony  at  Memphis, 
Teun.,  where  his  witnesses  had  to  be  carried  bj"  railroad  at  great  expense 
and  loss  of  time. 

In  the  mean  time  contestant  was  confined  personally  at  his  home  in 
Sardis,  examining  into  the  box  at  Corao,  and  by  the  dilatory  cross-exami- 
nation he  was  held  for  thirty  days  in  the  examination  of  only  two  hun- 
dred and  sixty-nine  witnesses  from  one  box,  Como.  Notwithstanding 
all  these  obstructions,  thirty-eight  out  of  ninety-seven  boxes  in  the  seven 
western  counties  were  examined  into  with  the  result  hereinafter  given, 
which  shows  that  he  was  elected. 

REJECTED  VOTERS. 

In  addition  to  the  four  hundred  and  twenty  two  voters  in  La  Fayette 
County,  who  were  disfranchised  by  having  their  names  erased  from  the 
poll-books,  there  were  three  hundred  and  eighty  rejected  in  five  coun- 
ties, Benton,  De  Soto,  Marshall,  Panola,  and  Tate,  making  eight  hun- 
dred and  two  voters  rejected,  who  appeared  at  their  usual  place  of 
voting,  which  shows  that  they  w^ere  not  dead  and  had  not  removed. 

Under  the  law  of  Mississippi  the  commissioners  of  election  of  each 
county  in  ai  star  chamber  proceeding  can,  without  notice  to  any  one, 
erase  the  names  of  voters  from  the  registration  books  if  they  are  dead 
or  removed  or  convicted  of  crime,  but  not  otherwise.  As  they  do  this 
without  notice  to  the  voter,  and  u[)on  ex  parte}  statements,  if  any  at  all 
are  taken,  the  only  presumption  in  favor  of  their  action  would  be  that 


CHALMERS    VS.    MORGAN. 


363 


tbey  acted  honestly ;  but  when  the  voters  appeared  living,  and  at  their 
usual  place  of  voting,  this  would  certainly  overcome  any  presumption 
that  they  were  either  dead  or  removed,  and  when  we  look  to  the  his- 
tory of  this  district  the  presumption  even  of  honesty  is  overthrown.  In 
1880  the  commissioners  of  De  Soto  County  were  indicted  on  two  charges 
(see  Digest  Election  Cases,  188()-'82,  pp.  315  and  316);  one  for  making- 
false  poll-books,  of  which  they  were  acquitted,  and  the  other  for  fraud- 
ulently erasing  the  names  of  voters  from  the  poll-books,  for  which 
they  were  convicted  (see  statement  of  case,  1774,  p.  316,  and  state- 
ment of  their  conviction,  p.  313,  in  same  volume  quoted  above).  One 
of  these  commissioners,  T.  A.  Dodson,  is  still  a  commissioner  of  that 
county.     (See  Rec,  p.  741,  where  his  name  is  signed  to  the  returns.) 

The  Commissioners  of  Election  in  Marshall  County  were  indicted  for 
the  saqie  thing  and  plead  guilty  (See  same  volume,  case  1995,  page 
315.)  That  this  was  done  in  Panola  also  (see  same  volume,  page  310), 
under  registration  of  voters.  Under  this  statement  of  the  history  of 
these  counties,  any  presumption  as  to  the  fairness  of  the  officers  in 
erasing  these  names  is  done  away  with.  And  yet  the  majority  of  the 
committee  refuse  to  count  these  votes,  on  the  i)resumption  the  officers 
are  presumed  to  do  their  dutj'.  The  law  in  failiug  to  provide  for  any 
notice  to  the  voter  who  is  disfranchised  shows  it  was  intended  to  be  an 
engine  of  fraud. 

There  were  rejected  as  follows: 


Waterford,  28  ('Rec,  pp.  620,621,  and  1095 

names  given). 
Chnlahoma,  30  (Rec,  pp.  619,1103 ;  names 

given). 
Laws  Hill,  8  (Rec,  pp.  628,  1093 ;  names 

given). 
Springporf,  13  (Rec,  pp.  442). 
Batesville,  bl  (Kec,  p.237  ;  names  given). 
Shorroda,  20  (Rec,  p.  188). 
North  Oxford,  200  (Rec,  pp.  562,  563). 
South  Oxford,  179  (Rec,  p.  555). 
Abbeville  40  (Rec,  pp.  555,  556,  and  625). 
Total,  802. 
422  in  La  Fayette,  226  in  Marshall,  94  in 

Panola,  33  in  De  Soto,  20  in  Tate,  and. 

7  in  Benton. 


Michigan  City,  7  (Rec,  pp.  464,  165). 
Hernando  Depot,  17  (Rec,  p,  180). 
Nesbitt's,  10  (Rec,  pp.  100,  119  and  134. 

Names  given  1139  and.  1145). 
Love's,  6  (Rec,  p.  380). 
East  Holly  Springs,  20  (Rec,  pp.  612,  577 

and  588). 
West   Hollv"  Springs,  23   (Rec,  pp.  612, 

577,  and  588). 
Red  Banks,  27  (Rec,  pp.  635,  1107). 
Hudsonville,13  (Rec,  pp.  638,1100;  names 

given). 
Byhalia,   40   (Rec,   pp.   615    and  mil; 

names  given). 
Watson,  30  (Rec,  p.  559). 
Wall  Hill,  17  (Rec, pp.  623, 1110 ;  names; 

given). 

That  these  rejected  voters  all  wanted  to  vote  the  Republican  ticket 
is  demonstrated  by  their  asking  for  and  receiving  Republican  tickets. 
That  they  had  been  voters  was  stated  by  themselves  at  the  time  they 
were  rejected.  At  Holly  Springs,  Captain  Buchanan  says,  the  43  re- 
jected there  were  known  to  him  as  Republican  voters  at  that  poll  (Rec,  p. 
012).  At  Sherrods,  Grayson  says  the  same,  and  that  some  of  them  lived 
on  his  place. 

At  Olive  Branch  old  Henry  Wood  says  he  had  been  marked  for  dead 
for  three  elections,  but  "riz  this  time." 

Under  this  testimony  the  burden  of  proof  would  be  on  those  who  re- 
ject the  voters,  to  prove  that  they  had  moved  away  or  died,  and  not 
upo)i  the  living  voter  who  asked  to  vote  at  his  usual  place  to  prove  that 
he  had  not  moved  away  or  was  not  dead. 

On  this  subject  the  majority  report  says: 

There  is  no  doubt  in  the  minds  of  your  committee,  from  the  evidence  presented  in 
this  record,  that  immense  frauds  were  practiced  in  this  Congressional  district  by  the 
simple  device  of  unlawfully  striking  names  from  the  registry  list  and  then  refusing 
to  receive  voles  be«.'aiuie  of  the  alleged  want  of  registration. 


364  CHALMERS    VS.    MORGAN. 

And  yet,  notwithstantliug  this  (leehiration,  the  majority  declined  to 
count  the  380  voters  who  were  thus  rejected  outside  of  La  Fayette 
County. 

HOW  VOTE   PROVED. 

As  to  how  far  the  testimony  of  the  ticket  distributors  can  prove  the 
votes  when  they  are  selected  to  issue  tickets  and  take  down  the  names 
of  voters  under  a  general  belief  of  their  party  that  their  votes  will  not 
be  fairly  counted  is  so  clearly  shown  in  the  opinion  of  Hon.  H.  B. 
Jackson,  United  States  circuit  judge,  that  we  give  it  in  full : 

CHARGE  TO  THE  JURY  IN  THE  FAYETTE  COUNTY  (TENN.)  ELECTION  CASE. 

Hon.  Howell  E.  Jackson,  United  States  circuit  judge  for  Tennessee,  Kentucky, 
Ohio,  and  Michigau,  formerly  the  Democratic  United  States  Senator  from  this  State, 
))re8ided  at  the  trial  and  delivered  the  charge  to  the  jury  in  the  case  of  the  United 
States  V8.  Carpenter  et  al.,  the  judges  of  election  at  Garuett's,  fourth  district,  Fayette 
County,  charged  with  fraud  at  the  election  on  November  6,  1988.  After  some  unim- 
portant iiitioductory  remarks  the  judge  said  : 

"Counsel  for  defendant  have  »  »  *-  sought  to  impress  upon  you  that  some  great 
and  vital  question  other  than  the  guilt  or  innocence  of  the  defendants  on  trial  is  in- 
volved in  this  suit.  This  is  a  mistake,  gentlemen  of  the  jury.  In  the  trial  and  proper 
disposition  of  this  case  upon  the  evidence,  the  court  nor  the  jury  have  anything  to 
do  with  the  race  problem  or  with  the  question  ot  suffrage.  The  colored  man  has  been 
regularly  invested  with  the  right  of  sullrage.  The  coustitution  of  this  State  confers 
the  right  to  vote  without  restriction  upon  all  male  citizens  twenty-one  years  of  age 
who  have  resided  twelve  months  in  the  State  and  six  months  in  the  county  in  which 
the  right  of  suffrage  is  exercised.  The  colored  man  has  the  benelit  of  this  constitu- 
tional provision ;  and  when  he  has  resided  in  the  State  and  county  the  required 
period  he  has  the  same  right  before  the  law  to  cast  his  vote  and  have  it  properly 
counted  that  you  and  I  have. 

"This  trial  in  no  way  involves  the  consideration  of  the  policy  or  impolicy  of  con- 
ferring this  high  privilege  xipon  the  colored  population. 

"  Fraud  can  rarely  be  established  by  direct  testimony,  to  the  precise  manner  of  its 
accomplishment.  Its  perpetration  does  not  admit  witnesses  to  the  worst  act,  and  it 
is  no  part  of  the  judge's  province  or  duty  in  this  case  to  inquire  into  or  to  be  satisfied 
as  to  the  method  or  plans  adopted  or  employed  to  accomplish  the  fraudulent  acts 
charged,  if  the  evidence  convinces  you  beyond  a  reasonable  doubt  that  they  were 
done  or  permitted  by  these  defendants  or  either  of  them. 

"  Several  witnesses  testified  that  the  voting  population  of  the  fourth  civil  district 
of  Fayette  County  on  November  6,  1888,  numbered  between  490  and  500,  say  about 
."SOO  ;  that  from  80  to  100  of  such  votes  were  white  and  Democrats  ;  that  the  remainder, 
numbering  about  400,  were  colored  men  and  Republicans;  that  on  the  day  of  the 
election  there  was  a  large  turn  out  of  such  voters  ;  that  the  colored  voters  present 
exceeded  300  in  number. 

"John  McGowan,  the  Republican  chairman  of  the  district,  testified  that  there  were 
over  300  colored  Republican  voters  present;  that  he  directed  many  or  most  of  them 
to  go  for  their  tickets  to  John  C.  Reeves,  who  occupied  a  position  10  or  20  steps  from 
tlie  voting  place,  and  was  distributing  Republican  tickets  to  Republican  voters;  that 
Reeves's  position  was  in  full  view  of  the  wind'^w  at  which  the  ballots  were  handed  in 
to  the  election  officers;  that  he  saw  many  of  such  tickets  deposited  or  handed  in  to 
officers  holding  the  election,  but  can  not  swear  to  the  exact  number  that  actually 
voted  such  Republican  ticket.  John  C.  Reeves  testified  before  you  that  he  was 
present;  that  he  had  in  his  possession  Republican  tickets,  a  sample  of  which  is  pro- 
duced in  evidence,  having  on  it  a  full  list  of  Republicau  candidates  from  Presidential 
electors  and  Congressmen  down  to  State  and  county  officers;  that  he  issued  to  the 
colored  voters  on  that  day,  upon  their  application  for  the  same,  three  hundred  and 
twenty-five  of  these  tickets  while  at  the  voting  place;  that  on  his  way  home  he  met 
four  or  five  other  voters  going  to  the  polls  to  whom  he  gave  Republican  tickets;  the 
names  of  two  of  these  voters  he  finds  upon  the  x)olllist  at  numbers  407  and  409. 
Reeves  further  states  that  he  saw  over  one  hundred  of  them,  to  whom  he  gave  such 
tickets,  go  directly  from  him  to  the  window  where  the  votes  were  received  and  hand 
them  to  the  officers  holding  the  election. 

"  He  could  not  swear  that  they  actually  deposited  the  identical  tickets  received 
from  him,  but  he  saw  no  change  of  ticket  or  change  of  purpose  on  the  part  of  the 
voter  after  procuring  from  him  the  Republican  ticket. 


CHALMERS    VS.    MORGAN.  365 

"  He  recognizes  and  identifies  on  the  poll-list  the  names  of  aboafr  100  of  such  Re- 
publican voters. 

"Now,  gentlemen  of  the  jury,  Reeves  or  McGowen  are  in  no  way  impeached,  nor 
are  their  statements  in  any  way  contradicted.  They  stand  before  you  as  in  every 
way  credible  witnesses,  and  their  testimony  is  entitled  to  full  faith  aud  credit. 

"  If  the  case  for  the  prosecution  stopped  with  the  testimony  of  Reeves  and  Mc- 
Gowen it  would  present  a  case  of  circumstantial  evidence  as  to  the  vote  actually  cast 
having  exceeded  that  which  was  counted  and  returned  by  the  election  ofificers  aud 
judges.  When  circumstautial  evidence  is  relied  on  to  convict,  as  couusel  for  defend- 
ants have  urged,  it  should  be  of  such  conclusive  character  as  to  exclude  every  rea- 
sonable hypothesis  on  innocence. 

"  But  the  Government's  case  does  not  stop  with  the  circumstantial  evidence  de- 
tailed by  Reeves  and  McGowen. 

"  In  addition  to  their  statement,  one  hundred  and  eight  witnesses  have  one  by  one 
separately  testified  before  you  that  on  the  day  of  said  election  they  got  from  Reeves 
Republican  tickets;  that  they  each  voted  such  ticket  just  as  it  was  received  from 
said  Reeves  without  in  any  way  scratching  or  changing  the  same.  Besides  these 
one  hundred  and  eight  witnesses,  Allen  Dodson  states  that  he  voted  a  straight  Re- 
publican ticket  which  begot  from  Dun  Bowlan,  which  differed  somewhat  in  appear- 
,iTice  from  those  issued  by  Reeves.  With  the  exception  of  said  Dodson,  the  other 
one  hundred  and  eight  witnesses  came  before  you  and  severally  state  that  the  ticket 
which  they  respectively  voted  on  the  6th  of  November,  1888,  in  said  fourth  district 
of  Fayette  County,  was  received  from  Reeves;  that  they  each  voted  such  ticket  as 
it  was  received  by  them,  without  change  or  alteration  of  any  kind ;  that  they  han- 
ded such  tickets  to  the  officer  holding  the  election — many  of  them  stating  that  de- 
fendant Carpenter  was  the  person  to  whom  the  ticket  was  delivered  at  time  of  vot- 
ing. The  name  of  each  of  these  one  hundred  and  eight  witnesses,  together  with  that 
of  Allen  Dodson,  appears  upon  the  poll-list  of  the  election  which  is  introduced  as 
evidence.  It  is  thus  shown  that  these  one  hundred  and  nine  witnesses  actually  voted 
at  said  election. 

"They  eac'a  identify  the  kind  of  ticket  they  respectively  voted  by  showing  from 
whom  they  received  the  same,  and  that  after  receiving  such  ticket  they  voted  it  with- 
out change  or  alteration. 

"These  witnesses  are  not  impeached  or  any  way  discredited.  They  stand  before 
you  as  credible  as  any  that  have  testified.  They  in  some  instances  make  mistakes  in 
saying  that  Harrison's  name  was  on  their  ticket,  and  fail  to  remember  other  names 
that  were  on  it.  But  intelligent  witnesses  for  the  defense,  like  Esquire  Mat  Rhea, 
make  similar  mistakes  when  they  say  that  Cleveland's  name  was  on  the  ticket  they 
voted,  and  also  fail  to  remember  the  names  of  the  different  candidates  voted  for. 
This  is  not  material.  The  controlling  fact  to  be  ascertained  from  the  evidence  is, 
did  the  one  hundred  and  nine  witnesses  for  the  prosecution  vote  the  Republican 
ticket  which  they  received  from  John  C.  Reeves  ? 

"The  witnesses  swore  directly  and  positively  to  the  fact.  A  fact  resting  on  their 
own  act  and  within  their  own  knowledge  This  is  not  circumstantial,  but  positive 
evidence,  and  if  the  witnesses  are  believed,  the  fact  is  established  that  at  least  109 
Republican  votes  were  cast  at  that  election  in  said  district.  The  testimony  of  these 
109  witnesses  swearing  directly  and  positively  to  this  fact  can  not  be  properly  dis- 
regarded by  the  jury,  because  such  witnesses  not  having  been  impeached  or  con- 
tradicted, stand  before  yon  as  credible  as  any  that  have  testified. 

"  If  the  prosecution  had  simply  shown  that  each  one  of  these  witnesses  was  seen 
going  to  the  polls  with  a  Republican  ticket  in  his  hands  which  he  had  received  from 
Reeves  with  a  declaration  of  his  intention  to  vote  such  ticket,  such  facts  and  acta 
would  have  constituted  circumstantial  evidence,  that  they  voted  sttch  ticket ;  but 
when  the  voter  in  person  comes  before  yon  as  a  witness  and  swears  that  he  put  into 
the  ballot-box  or  handed  into  officers  holding  the  election  the  identical  b  Hot  that 
he  received  from  Reeves,  that  is  not  circumstantial,  but  positive  testimony,  and  es- 
tablisiies  the  fact  if  the  witness  is  credible  ;  and  unless  impeached  or  directly  inter- 
ested in  the  result,  all  witnesses  are  deemed  credible. 

"  The  jury  should  give  to  such  positive  testimony  its  due  weight  and  consideration, 
and  the  facts  thereljy  established  should  be  followed  to  their  logical  result. 

"The  jury  are  not  at  liberty  to  infer  upon  the  mere  suggestion  of  counsel  that 
other  parties  have  committed  a  crime  in  order  to  shield  defendants  from  qonsequences 
of  acts  whicn  the  evidence  tends  to  establish  against  them. 

"  The  jury  may  not  indulge  in  any  such  presumptions  of  guilt  of  other  persons 
not  on  trial  in  order  to  relieve  defendants  whose  guilt  or  innocence  mast  be  found 
upon  the  evidence  before  the  jury  and  from  that  alone. 

"  It  is  further  suggested  by  counsel  for  the  defense  that  those  109  voters  were  be- 
fore or  after  receiving  their  Republican  tickets  bought  up,  and  for  a  consideration 
were  induced  to  destroy  the  tickets  received  from  Reeves  and  vote  Democratic  tickets. 
This  suggestion  is  open  to  the  same  observation  and  objection  as  the  others. 


366  CHALMERS    VS.    MORGAN. 

"  It  is  not  supported  by  any  testimony;  it  involves  the  presumption  of  a  criminal 
offense  committed  by  some  unknown  parties  upon  tlie  mere  suggestion  of  counsel. 

"  The  jury  is  not  warranted  in  giving  any  weight  to  this  suggestion.  The  force  of 
the  evidence  against  defendants  whatever  it  may  be,  can  not  be  broken  by  indulging 
in  any  such  presumption." 

This  sustaius  the  ruling  of  this  committee  in  Featherston  v.  Gate, 
Threat  v.  Clarke,  and  McDuffie  v.  Turpiu.  Applying  the  rules  of  law 
thus  clearly  established,  we  find  the  result  to  be  as  fcrilows: 

GENERAL  EVIDENCES  OF  FRAUD. 

Before  proceeding  to  discuss  each  box,  it  is  well  to  notice  the  general 
evidence  of  fraud  in  addition  to  that  so  ably  stated  in  the  majority  re- 
port all  over  the  district,  which  has  been  a  liepublican  district  at  every 
election  admitted  to  be  fair. 

Commissioners  of  their  own  choosing  refused  to  Kepublicans  (Gibbs' 
testimony). 

Have  always  been  refused.  This  is  admitted  in  Catchings's  brief, 
page  260. 

Inspectors  of  their  own  choice  refused  to  them  in  De  Soto  County. 
(Bell's  testimony,  Eec,  p.  156).  Have  continuously  been  refused. 
(Haynie,  Eec,  p.  547 ;  Colonel  Jones'  testimony,  Rec,  p.  521 ;  Haynie, 
Eec,  p.  547  ;  Henry  Wood,  p.  651  j  T.  W.  Turner's  testiihony,  Eec.  p. 
447). 

Contestee  openly  advocated  cheating  negro  voters.  (Howry,  Eec,  p. 
954.)  Contestee  openly  advocated  violence.  (Burton,  Eec,  p.  574.) 
Military  organization  at  his  home.  (Eec,  pp.  238  and  664.)  Plan  ad- 
mitted to  be  to  obtain  tremendous  majority.     (Eec,  p.  655.) 

It  is  proved  that  a  Democratic  inspector  changed  200  tickets  atBate- 
ville,  making  a  difference  of  400  at  this  box.  (Eec,  pp.  106-168  and 
472-474.) 

Democratic  officers  changed-72  tickets  at  Lamar,  making  a  diflference 
of  144  at  this  box.  (See  Brewer's  Democratic  inspector  ex  parte  Si& 
davit,  newly  discovered  evidence,  filed  January  20,  1890.) 

The  inspectors  were  caught  changing  tickets  at  East  Holly  Springs. 
(Eec,  p.  570.) 

Inspectors  caught  changing  tickets  at  Longtown,  (Eec,  pp.  430  and 
435.) 

In  spectors  caught  changing  tickets  at  Springport.  (Eec,  pp.  442  and 
444.) 

Inspectjors  caught  changing  tickets  at  Sherman's  Creek.  (Eec,  p. 
445.) 

Inspectors  caught  attempting  to  change  at  Senatobia.  (Eec,  pp.  528, 
629.) 

Inspectors  caught  attempting  to  change  at  Sherrods.     (Eec,  p.  188.) 

Inspectors  caught  miscounting  the  votes  at  West  Holly  Springs. 
(Eec,  pp.  577,  578.) 

Inspectors  caught  reading  Republican  as  Democratic  tickets  at  Nes- 
bitt's.     (Rec,  p.  102.) 

A  marked  ticket  voted  at  Hernando  Court-  Bouse  but  none  counted. 
(Kec,  pp.  151, 156,  and  383.) 

Five  scratched  Democratic  tickets  and  one  Prohibition  ticket  with 
Chalmers  for  Congress  voted  at  Eudora ;  none  such  counted.  (Eec,  pp. 
969  and  970.) 

At  Hudson ville  a  marked  Republican  ticket  voted  j  not  counted.  (Eec  , 
p.  863.) 


CHALMERS    VS.    MORGAN.  367 

At  Byhalia  three  men  marked  voted  who  were  not  present,  one  who 
was  then  sick  in  bed  and  died  a  few  days  after.  (Rec,  pp.  G16,  622,  and 
list  of  voters  1,114.) 

At  Hudsonville  seven  men  not  present  and  non-residents  of  the  State 
marked  voted.  (Rec,  p.  638  and  certified  list  of  voters,  not  published, 
bub  filed  with  the  committee.) 

Eight  hundred  and  two  living  Republicans  who  came  up  to  vote 
were  rejected  as  dead  or  removed. 

Ingram's,  Stewart's,  and  Taylor's,  large  Republican  boxes,  were  stolen. 

Early  Grove,  where  there  is  100  Republican  majority,  no  election 
held.    (Rec,  p.  187.) 

Thirty-one  more  votes  than  voters  at  Abbeville.    (Rec,  p.  625.) 

Twenty-one  more  votes  than  voters  at  Graball.  (Rec,  pp.  448  and 
451.) 

In  the  two  counties  of  Tippah  and  Union,  where  the  election  was  fair, 
there  were  only  1,064  colored  voters  (see  Rec,  p.  1),  and  here  Chal- 
mers received  912  votes  (see  Rec,  pp.  747,  748).  In  the  three  coun- 
ties of  La  Fayette,  Tallahatchie,  and  Tate  there  are  5,006  colored  voters 
(see  Rec,  p.  1),  and  here  Chalmers  is  counted  only  916  votes  (see 
Rec,  i)p.  742,  745,  746).  In  these  three  counties,  where  no  election  was 
held,  at  three  Republican  boxes  in  Tallahatchie  County,  Chalmers  had 
a  majority  of  6i3  over  Manning  (see  Rec,  p.  733).  This  time  Mor- 
gan is  counted  3,677  majority  over  Chalmers  (see  Rec,  pp.  742,  745,  746). 
In  one  of  these  counties.  La  Fayette,  the  Republican  voters  were  erased 
from  the  poll-books,  and  in  the  other  two  Republican  inspectors  were 
denied,  and  it  is  insisted  that  these  counties  shall  be  thrown  out.  Mor- 
gan is  counted  8,100  majority  (see  Rec,  p.  4).  Manning's  total  vote 
in  the  district  was  8,749  (Rec,  p.  733).  That  is  only  688  votes  less  than 
the  entire  Democratic  vote  ofthe  district  as  shown  for  Manning  in  1882. 
Morgan  is  counted  13,978,  a  majority  of  5,229  over  Manning's  vote, 
and  to  have  obtained  this  he  must  have  received  5,229  Republican  votes 
against  the  Republican  nominee,  when  the  Republican  party  was  well  * 
organized. 

INTIMIDATION. 

Houses  of  negroes  fired  into  a  Hernando  the  night  before  the  election. 
(Rec,  p.  157.) 

Negroes  beaten  and  houses  fired  into  at  Leverett's,  and  a  negro 
woman  shot.    (Rec,  pp.  1048, 1049.) 

Negroes  beaten  for  refusing  to  join  Democratic  club  at  Dogwood 
Flat.    (Rec,  p.  1050.) 

Voters  fired  into  on  day  of  election  at  Sherman's  Creek.  (Rec,  pp. 
445  and  1053.) 

Tickets  snatched  from  voters  at  Dogwood  Flat.  (Rec,  pp.  449  and 
1054.) 

Room  fired  into  at  Abbeville  while  votes  were  being  counted.  (Rec, 
p.  625.) 

Armed  men  went  from  Hernando  to  Nesbitt's  and  remained  until  the 
votes  were  counted.    (Rec,  pp.  132  and  701,  702.) 

At  one  box  (Como)  the  fraud  was  thoroughly  proven  by  examining 
the  voters  themselves. 

Taking  testimony  delayed  by  dilatory  cross-examinations.  (See  every- 
where.) 

Testimony  stopped  at  Hernando  by  intimidation.  (Rec,  pp.  164  and 
994.) 


368  CHALMERS    VS.    MORGAN. 

Testimony  stopped  at  Holly  Springs  because  no  officer  to  take  it. 
(Rec,  pp.  580-582,  GOO-602.) 

Testimony  not  taken  at  Oxford  because  counsel  for  contestant  deemed 
it  imprudent  to  do  so.     (Rec,  p.  593.) 

BENTON  COUNTY. 

Lamar. — The  box  here  was  taken  from  the  presence  of  the  United 
States  supervisor,  and  hence  the  returns  are  vitiated. 

Perry  Ward,  duly  sworn,  deposes  aud  says  as  follows: 

(Couusel  for  J.  B.  Morgan  objects  to  exatuinatiqn  of  this  witness,  as  no  notice  was 
given.) 

Qu.  No.  1.  Where  do  you  Jive? — Ans.  I  live  ou  Mr.  John  Mason's  farm. 

Qu.  No.  2.  Did  you  vote  at  Lamar  last  election  7 — Aus.  I  did. 

Qa.  No.  3.  Was  you  the  Federal  supervisor  at  Lamar  ? — Aus.  I  was. 

Qu,  No.  4.  Was  you  in  the  room  where  the  election  was  held  all  day  aud  until  the 
votes  were  counted  out  ? — Ans.  I  was. 

Qu.  No.  5.  Was  you  where  you  could  see  the  box  all  the  time  until  the  polls  were 
closed? — Ans.  Yes. 

Qu.  No.  6.  The  box  wasn't  removed  any  time  during  the  day  or  night  ? — Ans.  Ye», 
sir. 

Qu.  No.  7.  Where  was  the  box  carried  to,  and  when  was  it  removed  ? — Ans.  It  was 
moved  at  12  o'clock,  and  Mr.  Brewer  carried  it  to  his  house? 

Qu.  No.  8.  Did  you  go  with  Mr.  Brewer  and  see  the  box  ? — Ans.  I  did  not. 

Qu.  No.  9.  I  will  ask  you  to  state  just  what  occurred,  and  the  condition  the  box  was 
in  when  Mr.  Brewer  carried  it  otf  aud  brought  it  back,  and  also  what  was  Baid  to  lim 
(supervisor.) — Aus.  Wheu  we  reached  the  box  that  inorniug  it  locked  and  sealed  ind 
he  unlocked  box.  We  voted  in  the  door  until  12  o'clock,  and  at  12  o'clock  he  said  we 
would  close  for  dinner,  aud  he  said,  "  Judge,  I  will  give  you  the  key  and  I  will  take 
the  bo«,  and  don't  you  run  off  with  the  key."  I  said,  "  Give  me  the  box  and  you  take 
the  key,  for  there  is  uothiug  in  the  key  for  me  to  run  off  with ;  you  have  it  all  in  the 
box."  He  said,  "  Look  at  the  box  and  pull  it  aud  see  if  it  is  locked."  I  told  him  it 
was  locked.  He  said,  "  Do  you  see  any  hole  in  it?"  I  told  him  "  No,  sir;  there  wis 
CO  hole  in  it,"  and  when  the  box  came  back  after  dinner  it  was  unsealed,  hole  was 
open,  and  he  said,  "  We  will  vote  iu  the  hole  this  evening."     (Rec,  pp.  169, 170.) 

•  Since  the  taking  of  the  evidence  in  this  case  closed,  theej^j^ar^e  state- 
ment of  the  "  Brewer"  herein  referred  to  has  been  taken  by  contestant, 
and  the  same  filed  with  the  Election  Committee  January  29, 1890,  and 
notice  thereof  given  to  contestee  by  the  clerk  of  the  committee. 

Brewer's  affidavit  states  that  he  was  one  of  the  Democratic  election  in- 
spectors at  Lamar  at  this  election ;  that  he  kept  an  account  of  the 
vote  as  counted,  and  preserved  a  memorandum  thereof  iu  his  memo- 
randum book  ;  that  he  signed  the  returns  as  made  up  by  the  clerk 
without  examining  the  same,  thinking  the  clerk  would  make  a  true  re- 
turn of  the  vote;  that  since  the  election  he  learned  the  returns  as  pub- 
lished were  at  variance  with  the  true  vote  as  cast,  and  that  he  has 
frequently  so  stated. 

He  swears  that  the  true  vote  as  cast  at  that  election,  according  to  the 
memoranda  then  and  now  in  his  possession,  was,  for  Chalmers  149, 
and  Morgan  29.  The  returns  gave  Chalmers  77  and  Morgan  101.  But, 
leaving  out  the  affidavit,  and  counting  48  proven  for  Chalmers,  we  should 
take  101  from  Morgan  and  77  from  Chalmers.    The  count  then  stands: 


Chalmers. 

Morgan. 

6,817 

77 

13, 978 

Lamar: 

101 

Add 

5,740 
48 

13,  877 
0 

5,788 

13,877 

CHALMERS  VS.  MOKGAN.  369 

DE  SOTO  COUNTY. 

Rom  Lake. — Jim  Stephens,  Kepublican  inspector,  could  not  read  or 
write.  (Kec,  p.  45.)  John  McCain,  a  suitable  inspector  asked  for  by 
Kepublicans,  was  refused  appointment  by  the  Democrats.  (Rec,  p.  40.) 
There  were  363  votes  counted  at  this  box.  It  is  proved  that  249  of  these 
were  negroes,  and  that  all  voted  the  Republican  ticket  but  one. 

Jim  Stephens  (c),  a  witness  on  behalf  of  contestant,  being  first  duly  sworn,  deposed 
as  follows : 

Direct  examination  by  Gen.  Chalmeks  : 

Q.  How  old  are  you  1 — A.  Eighty. 

Q.  Can  you  read  and  write  ? — A.  No,  sir. 

Q.  Were  you  appointed  the  Republican  judge  of  election  here  at  Horn  Lake  at  the 
last  Congressional  election  ? — A.  Yes,  sir. 

Q.  Did  you  vote ? — A.  Yes,  sir;  I  voted. 

Q.  Who  did  you  vote  for  ? — A.  I  voted  tor  Mr.  Chalmers. 

Q.  How  did  you  know  that  you  voted  for  Mr.  Chalmers? — ^A.  The  ticket  was  given 
to  me  that  way. 

Q.  Did  you  ask  for  a  Chalmers  ticket? — A.  Yes,  sir. 

Q.  Your  intention  was  to  vote  for  Chalmers  ? — A.  Yes,  sir.    I  don't  know  whether 
I  voted  for  him  or  not ;  I  couldn't  read.    My  intention  was  to  vote  for  him. 
Cross-examination  by  Mr.  Watson  : 

Q.  What  voting  precinct  do  you  live  in  in  this  Horn  Lake  precinct  j  you  live  here 
at  Horn  Lake,  do  you  ?— A.  Oh,  yes  ;  sir. 

Q.  Where  did  Mr.  Chalmers  live  at  the  time  you  voted  for  him  ? — A.  Well,  I  don't 
know  exactly  where  he  did  live  then.  I  voted  for  him.  I  don't  know  where  he  did 
live  at. 

Q.  Do  you  know  now  where  he  lives  f — A.  No,  sir;  I  don't  know  now. 

Q.  How  long  have  you  known  Mr.  Chalmers? — A.  I  didn't  know  him  when  I  seed 
him  without  somebody  else  telling  me  it  was  him. 

Q.  Who  else  did  you  vote  for? — A.  Nobody  else;  they  didn't  give  me  but  the  one 
ticket. 

Q,  You  say  you  were  one  of  the  judges  of  the  election  ? — A.  Yes,  sir. 

Q.  You  signed  the  returns  of  the  election  ? — A.  Yes,  sir. 

Q.  Was  the  election  conducted  fairly  ? — A.  It  was  while  I  was  sitting  there;  that 
was  all  I  could  do  about  it. 

Q.  Were  you  there  all  day  ? — A.  Yes,  sir ;  I  M'as  there  all  day,  till  night. 

Jim  (his  x  mark;  Stephens. 

Horn  Lake,  Miss.,  Jan.,  21,  '89. 
Deposition  of  Tom  McCain  (col.),  a  witness  on  behalf  of  the  contestant,  being 
first  duly  sworn,  deposed  as  follows : 

Direct  examination  by  Gen.  Chalmers  : 

Q.  State  your  name  and  age,  and  where  you  reside. — A.  Thomas  McCain  is  my  name ; 
living  here  in  De  Soto  County;  been  living  here  for  nearly  50  years,  I  reckon  ;  been 
here  ever  since  I  was  a  boy,  and  April  Ist  will  be  62;  that's  my  citizenship  in  this 
country. 

Q.  Did  you  ever  hold  any  office ;  if  so,  what  was  it  ? — A.  I  was  elected  here  to  the 
legislature  of  Mississippi ;  I  believe  last  time  I  run  here  I  beat  the  governor ;  I  know 
I  did  ;  got  more  votes  than  the  governor  did. 

Q.  When  was  that? — A.  It  was  in  1874, 1  believe;  somewhere  along  there. 

kQ.  Did  you  vote  here  at  the  last  election  for  Congress? — A.  I  did,  sir. 
Q.  Who  did  you  vote  for  ? — A.  I  voted  for  Gen.  Chalmers  and  Harrison  and  Morton, 
think  them  tlie  men,  but  I  voted  the  Chalmers  ticket. 
Q.  About  how  many  colored  men  were  here  on  that  day  ? — A.  Well,  sir,  there  was 
ear  250 ;  satisfied  of  that.    I  know  it  because  our  secretary  taken  down  the  names, 
think,  of  49  that  was  here ;  I  know  that  to  be  a  fact. 
Q.  Do  you  mean  49  or  249  ? — A.  I  meant  249.    Well,  they  was  aroand  here  same  as 
olackbirds,  around  the  depot  till  dark.    Every  man  that's  here  can  testify;  if  he'll 
speak  just  like  it  was  he'll  say  so  too. 

Q.  Did  J  on  know  any  colored  man  who  voted  the  Democratic  ticket  on  that  day? — 
A.  Well,  we  had  a  watch,  and  at  the  best  of  our  discovery  there  was  one  we  thought 
that  he  was  a  little  crooked. 

Q.  Who  was  he  ? — A.  He  was  a  little  crooked-legged  fellow  by  the  name  of  Sam. 
Doyle.    He  took  a  Eepiiblican  ticket,  and  I  think  he  taken  two;  satisfied  he  did — 

H.  Mis,  137 24 


370  CHA.LMEES   VS.   MORGAN. 

took  a  Democratic  and  a  Republican  ticket — aud  we  thought  from  the  way  he  acted 
he  was  goinjj  to  slip  in  a  Democratic  ticket.  He  was  living  around  Mr.  Foster's,  and 
come  here  with  a  Cleveland  hat  on,  and  from  the  way  he  acted  on  the  outside  we 
thought  probably  he  voted  the  Uomocratic  ticket ;  at  least  we  didn't  have  no  belief 
in  him  at  all.  He  went  up  with  some  men.  to  vote,  but  he  kept  dodging  around,  and 
from  the  way  he  acted  we  thought  it  was  a  little  doubtful  about  him  voting  the  Re- 
publican ticket. 

Q.  Could  you  tell  me  how  many  white  men  were  here  to  vote  ? — A.  I  couldn't  tell 
correctly,  but  I  am  satisfied  there  was  20  to  one. 

Q.  You  mean  20  colored  to  one  white? — A.  Yes,  sir;  there  were  so  many  that  looked 
dark  ;  there  was  so  few  white  men  that  they  lool<ed  dark. 

Q.  The  judges  gave  me  only  106  votes  and  Judge  Morgan  257  ;  in  your  opinion, was 
that  a  fair  count  or  not? — A.  No,  sir;  I  couldn't  say  that,  because  I  knew  and  was 
satisfied  the  votes  we  cast  here  that  it  couldn't  be  that,  just  couldn't  bo  that,  that 
is  if  they  counted  them  correctly;  if  the  votes  got  to  them  there  was  sonietLing 
wrong. 

Q.  In  your  opinion,  did  they  count  this  box  fairly  in  1884  when  Blnino  run  for 
President  aud  1  run  for  Congress  ? — A.  Well,  sir,  1  must  sj)eak  the  truth  'cause  I'm 
sworn,  'cause  I've  got  to  die;  no,  sir;  I  can't  say  it  was  a  fair  election,  because  the 
maneuvers,  in  my  judgment,  didn'tshow  to  be  it  was  fair,  and  of  course  I  can't  say  it. 

Q.  How  long  have  yon  been  voting  at  Horn  Lake  box  ? — A.  I  voted  here  in  '(56, 
first  vote  ever  I  cast ;  since  I  been  pronounced  a  free  man  I  vote  right  here. 

Q.  When  was  the  last  fair  election,  in  your  opinion,  held  at  Horn  Lake? — A.  No, 
not  '75  ;  'CO,  I  believe ;  no,  we  had  two  elections ;  since  the  surrender  things  went 
I)retty  well. 

Q.  In  the  race  between  Alcorn  and  Ames  which  occurred  in  1873,  who  had  tbe  ma- 
jority at  this  box,  Rep'iblicans  or  Democrats? — A.  Republicans. 

(Objected  to  by  Foster.) 

Q.  Who  had  the  majority  counted  since  1875  at  this  box? — A.  Well,  the  Repub- 
licans always  have  been  in  the  majority  here  at  this  box. 

(Objected  to.) 

Q.  Have  they  been  counted  that  way  ? — A.  No,  sir. 

Q.  It's  your  opinion  tliey  have  always  been  in  the  majority  here  at  this  box? — A. 
I  know  it ;  you  may  call  every  man  in  this  district  and  you'll  find  there  is  more  col- 
ored peoiile  here  than  white  jjeople  ;  that  shows  for  itself. 

The  number  of  Democratic  voters  at  this  box  is  shown  as  follows : 

Deposition  of  W.H.Bolton  (white),  a  witness  on  behalf  of  the  contestant  j  being 
first  duly  sworn  deposed  as  follows; 

Direct  examination  by  Gen.  Chalmers  : 

Q,  Are  you  a  Democrat  or  a  Republican  ? — A.  Democrat,  sir. 

Q.  You  voted  for  Judge  Morgan,  did  you  not,  at  the  last  election  T — A.  Yes,  sir. 

Q.  Here  at  the  Horn  Lake  box  ? — A    Yes,  sir. 

Q.  Do  you  remember  the  primary  election  between  Slack  and  Oglesby  sind  Cook 
and  others  for  district  attorney  here  in  ldb7  ? 

(Objected  to  on  the  ground  that  he  didn't  allege  anything  in  the  notice  of  contest 
about  the  names  of  Slack  and  Oglesby  and  Cook.) 

Q.  Then  I'll  ask  if  there  was  not  a  race  l^etween  five  candidates  for  district  attor- 
ney in  this  county  ? — A.  Yes,  sir. 

Q.  Was  that  or  not  an  exciting  contest,  and  did  it  or  not  bring  out  the  full  Demo- 
cratic vote  at  this  box  ?— A.  I  think  it  did,  sir. 

Q.  The  vote  as  appears  from  the  Hernando  paper  at  Horn  Lake  box  was  a  hundred 
and  fifteen  ;  is  not  that  as  many  as  the  Democrats  ever  polled  here  at  any  primary 
election  ? — A.  I  expect  it  is,  sir, 

Q.  Do  you  know  of  moie  white  people  who  are  Democrat  voters  in  this  beat  than 
that  ? — A.  There  might  possibly  be  a  few  more  than  that. 

Q.  Did  yon  hear  any  comments  at  the  last  election  as  to  whether  all  the  while 
voters  wee  here  or  not  ? 

(Objected  to.) 

A.  I  heard  the  couversalion  over  there,  and  I  heard  some  say  there  were  several 
that  did  not  come  here — naming  them — but  I  don't  know  who  they  are. 

Now,  if  we  take  248  from  the  total  vote  polled,  3G3,  it  leaves  exactly 
115,  which  Bolton,  a  Democrat,  says  is  the  full  Democratic  vote  here. 
The  history  of  this  box  shows  that  it  is  notorious  for  fraud.  In  tlie 
Buchanan-Manning  contest  the  box  was  taken  from  the  presence  of  the 
United  States  supervisor,  and  when  he  followed  it  he  was  cursed  and 
abused  aud  threatened  with  a  pistol.    The  box  was  rejected  for  fraud 


CHALMERS   VS.   MORGAN.  371 

by  both  the  majority  and  minority  reports  in  that  case.     (See  Digest 
Election  Cases,  1880-'83,  pp.  296  and  325.) 

Direct-examination  by  Gen.  Chalmehs  : 

Q.  What  is  your  name?— A.  J  N.  Bolton. 

Q.  What  is  your  age  and  profession  f — A.  I  am  59  years  old  ;  practice  physics;  do 
most  anything  that  comes  to  hand. 

Q.  Where  do  you  reside  ? — A.  I  reside  in  the  state  of  Horn  Lake. 

C^.  Were  you  present  at  the  Congressional  election  held  here  Nov.  last? — A.  I  was 
here  in  the  town  part  of  the  day. 

Q.  What  is  your  politics? — A.  I  am  an  Old-Line  Whig. 

Q.  Do  you  know  any  colored  man  at  this  box  who  votes  the  Democratic  ticket  f  If 
80,  please  state  what  his  name  is.  —A.  I  do  cot  know  one. 

Q.  Were  you,  or  were  you  not,  United  States  supervisor  at  this  box  in  1884  ? — A. 
Yes,  sir. 

Q.  Do  you  remember  what  was  the  difference  between  the  white  and  colored  voters 
jt  that  time? 

(Obiectcd  to.)  • 

Q.  Please  state  as  near  as  you  can  what  occurred  at  that  election,  and  whether  in 
your  opinion  it  was  a  fair  election  at  Horn  Lake  box,  and,  if  not,  what  your  reastms 
are? — A.  I  don't  know,  Gen,,  that  I  understand  your  question  exactly.  They  went 
on,  voted  until  6  o'clock,  and  after  they  shut  the  box  they  pushed  Mr.  Wooldridge, 
put  out  the  light,  and  we  all  came  in  the  dark  ;  and  when  they  counted  the  box  they 
liad  it  very  different  from  what  I  thought  it  would  be. 

Q.  Explain  more  fully  what  you  mean  by  putting  out  the  light,  and  what  was  done 
at  that  time  ? — A.  Well,  Mr.  Wooldridge  said  that  he  had  promised  Mr.  Batte  that  he 
wouldn't  have  any  light  through  the  front  room  and  he  blowed  the  light  out,  and 
Mr.  Clinton  picked  up  the  box  and  started  out ;  and  Mr.  Granberry  pushed  me  out, 
said  he'd  follow  the  Dr.  out,  and  they  carried  the  box  up  to  my  house,  and  after  sup- 
per counted  it  out,  but  I  didn't  think  it  was  the  box  they  voted  in. 

Q.  When  were  the  boxes  changed,  if  they  were  changed  ? — A.  As  they  went  out. 

Q.  Were  there  or  not  more  colored  voters  who  voted  here  that  day  than  were 
counted  for  me  or  for  the  Republican  party  ? — A.  I  think  there  were ;  I  stayed  in  the 
room  all  the  time,  and  I  think  there  was  more  colored  voters  than  there  was  white 
men  that  day. 

In  addition  to  this,  it  is  shown  that  the  certified  list  of  voters,  which 
was  tlie  record  of  those  who  voted,  was  destroyed  by  the  friends  of  cou- 
testee  at  his  home.    E.  W.  Smith,  one  of  the  commissioners,  says : 

Cross-inter.  4.  What  was  done  by  the  election  commissioners  with  the  returns  of  the 
last  November  election  ? — Ans.  They  were  placed  in  the  vault  of  the  circuit  cle'-k, 
and  I  afterwards,  when  assisting  the  circuit  clerk  in  his  office,  had  occasion  to  clean 
up  the  vault,  emptied  the  ballot-boxes  and  burnt  the  contents,  and  replaced  the  boxes 
in  order  in  the  vault,  not  knowing  of  any  Jaw  requiring  us  to  keep  the  returns  any 
definite  or  stated  time. 

Cross-inter  5,  Were  the  lists  of  voters  at  each  box  among  the  contents  of  the  bal 
lot-boxes  destroyed? — Ans.  I  don't,  know  about  that.     I  never  examined  it. 

Cross-inter.  6.  Do  you  not  act  as  deputy  circuit  <.!Ourt  clerk  for  De  Soto  County,  and 
were  you  not  so  acting  when  you  aided  in  destroying  the  eontents  of  the  ballot- boxes, 
a^you  have  described? — Ans.  I  was  assisting  Mr.  Maxwell,  but  not  as  regularly  ap- 
pointed deputy. 

Cross-inter.  7.  You  destroyed  all  the  papers  and  documents  returned  by  the  various 
inspectors  from  the  difi'erent  boxes,  did  you? — Ans.  I  emptied  the  ballot-boxes  on  the 
floor  and  destroyed  the  contents,  with  the  exception  of  the  poll-books. 

Cross-inter.  8.  If  any  list  of  the  voters  was  kept  at  each  voting  place,  and  such 
lists  had  been  returned  to  you  or  the  commissioners,  they  would  have  been  in  the 
ballot-boxes  with  the  rest  of  the  papers,  would  they  not?— Ans.  They  would. 

This  is  certainly  euongh  to  vitiate  the  returns  at  this  box.  The  proof 
of  the  vote  is  tbat  the  negroes  belonged  to  Republican  clubs  and  had 
selected  two  men,  Joe  Rutland  to  issue  tickets,  and  H.  H.  Hill  to  take 
down  the  names  of  those  who  received  them,  in  order  that  they  might 
prove  their  vote  if  it  was  stolen.  Rutland  was  not  examined  because 
he  had  gone  from  the  State  to  teach  school.  Hill  proves  that  249  Re- 
l)ublican  tickets  were  issued  by  Rutland  to  men  who  went  with  them  to 
the  polls  to  vote,  aiid  that  only  one  was  suspected  of  not  voting  them. 
Q'hut  he  and  Rutland  took  down  the  names  of  the  voters  and  preserved 


372  CHALMERS   VS.    MOKGAN. 

the  stubs  from  which  the  tickets  were  taken.  He  swears  that  he  knows 
the  handwriting  of  Eutland,  and  that  these  names  were  written  partly 
by  Rutland  and  partly  by  himself.  He  files  as  exhibit  to  his  deposi- 
tion, the  list  of  voters  thus  kept,  and  the  stubs  from  which  the  tickets 
were  taken.  (See  Kec,  pp.  40-44.) 
Tom  McCain  says : 

Cross-examiuation  by  Mr.  Foster  : 

Q.  Do  I  understand  you  to  say,  then,  that  there  hasn't  been  a  fair  election  held  here 
since  yon  beat  the  governor? — A.  Not  as  I  know,  Mr.  Foster;  I  know  this,  and  you 
may  take  t  he  books  and  it  will  show  np  that  way,  there  are  more  colored  people  here, 
and  there  are  more  of  us  vote  here,  and  we  are  always  behind;  you  can  call  it  as  you 
please. 

Q.  How  do  you  know  that  all  of  these  250  negroes  voted  the  Republican  ticket? — 
A.  We  had  men  watching  and  we  had  Republicans  giving  the  tickets,  and  saw  where 
they  carried  them  and  saw  when  they  handed  them  in,  and  we  saw  tiiem  go  in  at  the 
window. 

The  proof  shows  248  votes  for  Chalmers  and  1  for  Morgan: 

From  this  proof  the  returns  should  be  rejected,  and  248  added  to 

Chalmers,  256  taken  from  Morgan.    The  returns  here  were,  Chalmers, 

lOG;  Morgan,  257.     The  count  stands — 


Chalmers. 

Morgan. 

5,788 
U2 

13, 877 

Horn  Liike: 

Add 

256 

5,930 

13, 621 

NeshiWs. — W.  W.  Bullard,  United  States  supervisor,  says  the  colored 
inspector  here  was  a  Democrat.     (Kec,  pp.  130  and  131.) 

Q.  What  name  appears  on  the  list  prepared  by  you  since  the  election  for  you  to 
testifyby?— A.  Eli  Walker. 

Q.  Is  there  any  other  diiference  ? — A.  Yes,  sir  ;  he  is  marked  ''  C.  D.'' 

Q.  Is  there  any  letter  "  U.  D.''  on  the  original  list  prepared  by  you  ! — A.  No,  sir. 

Q.  Is  there  *'  C.  D."  on  the  list  prepared  by  you  since  the  election  ? — A.  Yes,  sir. 

Q.  What  does  that  ''C.  D."  indicate  ? — A.  It  indicated  that  for  "Colored  Demo- 
crat " 

Q.  Isn't  it  a  fact  that  you  put  that  •'  C.  D."  there  after  you  had  been  told  and 
talked  about  that  Eli  Walker  had  voted  the  Democratic  ticket? — A.  Oh,  no,  sir. 

Q.  Wh.y,  then,  did  you  not  put  it  on  the  original  list  kept  by  you  on  that  day  ? — A. 
Because  I.  didn't  see  ,  I  inquired  among  the  ticket  i.ssuers  that  come  up  a  cotact  about 
which  way  he  voted,  and  he  didn't  get  a  ticket  from  the  one  who  issued  Republican 
tickets. 

Q    When  did  you  find  that  out  ? — A.  I  found  that  out  the  next  day. 

Q.  The  next  day  after  the  election  you  found  out  he  didn't  get  a  ticket  from  the 
Republican  bosses  and  then  you  placed  him  down  as  a  colored  Democrat;  is  that 
right?— A  iTes,  sir;  all  we  wouldu't  count  for  getting  a  ticket  we  just  counted  them 
the  other  way. 

Neither  Walker  himself  nor  any  other  witness  is  called  to  disprove 
this.    Again  Bullard  says  Walker  could  not  read  or  write. 

Q.  Can  Eli  Walker  read  and  write? — A.  Not  to  my  knowing.     (Rec,  p.  102.) 

Neither  Walker  nor  any  other  witness  is  called  to  prove  that  he  could 
read  or  write.  The  Democrats  refused  to  appoint  the  inspector  asked 
for  by  th«  Republicans,  and  appointed  this  Eli  Walker. 

Again  Bullard  says : 

A.  The  majority  voted  Republican  for  this  reason:  The  club,  it  instructed  that 
every  ticket  must  he  voted  with  open,  and  as  they  were  handed  in  every  colored  man 
excepting  two  handed  their  tickets  in  open,  and  they  had  to  bo  folded  up  after  they 
were  handed,  tu  the  window. 


CHALMERS    VS.   MORGAN.  373 

Q.  What  two  were  thoy  ? — A.  Taylor  Cansellor  was  one  that  voted  his  ticltet  folded 
up  and  Eli  Walker  was  the  other.  He  didn't  hand  his  ticket  in  ;  he  had  his  ticket  in 
the  room  there ;  he  was  judge. 

Q.  You  say  the  Republican  club  had  instructed  all  the  members  to  vote  an  open 
ticket?— A.  Yes,  sir. 

Q.  And  all  the  colored  men,  except  two,  did  vote  an  open  ticket? — A.  Yes,  sir. 
(Rec,  p.  102.) 

Vincent  Smith  says : 

Q.  Did  you  vote  at  the  Nesbit  box  of  last  Nov.  election  for  Congressman? — A.  Yes, 
sir. 

Q.  Who  did  you  vote  for?— A.  Gen.  Chalmers. 

Q.  Did  you  watch  the  men  voting  on  that  day  ? — A.  Yes,  sir. 

Q.  How  were  they  voting — the  colored  men  ? — A.  Well,  sir,  they  seemed  to  be  vot- 
ing the  Republican  ticket,  sir. 

Q.  Did  they  vote  an  open  or  a  closed  ballot  general  ? — A.  Well,  the  instruction  waa 
to  vote  an  open  ticket. 

Q.  Did  they  do  that? — A.  As  far  as  I  seed. 

Q.  Did  you  see  Taylor  Castler  vote  ? — A.  Yes,  sir. 

Q.  What  ticket  did  he  vote  ? — A.  Republican  ticket. 

Q.  Who  did  he  get  it  from  ? — A.  Me. 

Q.  Who  did  you  get  it  from  ? — A.  John  Morgan. 

W.  W.  Bullard  gives  the  name  of  every  voter  and  his  color,  and  shows 
that  182  colored  and  only  46  white  men  voted  at  this  box.  The  Demo 
cratic  primary  election  here  the  year  before  showed  only  48  Democratic 
voters  at  this  box.  No  witness  is  called  to  contradict  this,  and  the 
certified  list  of  voters  having  been  destroyed,  the  list  kept  by  the  United 
States  supervisor  becomes  the  best  evidence  in  the  case.  No  witness 
denies  that  there  were  only  46  white  voters  here  or  that  182  negroes 
voted  open  tickets  as  instructed  by  their  club. 

John  Morgan  issued  the  Eepublican  tickets  and  saw  all  but  one 
handed  open  to  the  election  inspectors  ;  ten  wererejected.  (Rec.  p.  13J.) 

Noah  Odum  took  down  the  names  of  the  Republican  voters  and  saw 
them  go  with  Republican  tickets  open  to  the  polls;  ten  were  rejected. 
(Rec.  p.  124.) 

Ue  tiles  a  list  of  these  names  and  not  a  single  man  on  the  list  is  ever 
called  to  prove  that  he  did  not  vote  the  Republican  ticket. 

W.  W.  Bullard  further  says  : 

Q.  To  the  best  of  your  knowledge  and  belief  were  the  ballots  fairly  counted  or 
not  ? 

(Objected  to.) 

A.  No,  sir ;  I  didn't  believe  they  were  fairly  counted. 

Q.  what  reason,  if  any,  did  you  have  to  believe  they  were  not  fairly  counted  t 
(Objected  to  by  Mr.  Foster.) 

A.  My  rea8(m  was  I  could  slightly  see  the  stub-end  ticket  in  counting.  I  can  count 
the  stub  end  ticket  in  calling  out ;  the  notched-edged  ticket  was  called  Democrat,  too. 

Q.  The  ticket  that  had  notches  on  the  ends  was  read  as  a  Democrat  ticket  ? — A.  Yes, 
\€ir.    (Rec,  p.  102.) 

This  is  the  only  statement  made  by  Bullard  which  there  is  any  effort 
^to  disprove. 

J.  C.  Meharg,  a  witness  for  contestee,  being  duly  sworn,  deposeth  and 
iaith  as  follows: 

Int.  1.  What  is  your  name,  age,  and  occupation,  and  where  do  you  reside,  and  how 
Hong  have  you  resided  tht're,  and  where  do  you  vote  ? — Ans.  My  name  is  J.  C.  Meharg ; 
137  years  old  ;  I  reside  iu  Do  Soto  County,  4  miles  west  of  Nesbit,  and  am  a  farmer;  1 
rhave  lived  there  about  27  years ;  I  vote  at  Nesbit's. 

L  Int.  2.  Were  you,  or  not,  at  Nesbit,  at  the  Nov  election,  188R,  and  what  office,  if  any, 
I'did  .von  hold  on  that  day  ? — Ans.  I  was,  and  was  an  inspector  of  the  election  at  that 
Itinin,  and  at  that  l)ox. 

Int.  3.  Were  you,  or  not,  there  all  the  time  on  that  day  from  the  opening  of  the 
polls  in  the  morning  until  the  ballots  were  counted  out  that  night,  and  did  you  see 


374  CfiALMERS   VS.   MORGAJ^. 

the  counting  out  of  same?— Ans.  I  was  there  all  day,  and  saw  the  hallota  connted 
out. 

Int.  4.  Did  yon  see  any  cue  read  off  the  Republican  tickets,  or  any  of  them,  and  call 
out  Democratic  names  ? 

(Objected  to  by  counsel  of  contestant  as  leading.) 

Ans.  I  did  not. 

Int.  5.  If  such  had  been  done  by  any  person  there  would  you  not  have  seen  and 
known  it? — Ans.  1  would. 

Int.  6.  Do  you  know  Wallace  Bullard,  a  colored  man ;  if  so,  was  he  present  at  the 
last  election,  and  did  he  hold  any  office;  if  any  place,  state  what? — Ans.  I  know 
Wallace  Bullard  ;  he  was  present  all  day  until  the  count  was  about  half  over  that 
night.     He  claimed  that  he  was  a  U.  S.  8Uj)ervisor  ;  I  never  saw  his  commission. 

Int.  7.  You  state  he  was  there  until  the  count  was  about  half  over;  please  state 
where  he  was  the  balance  of  the  time,  if  you  know,  and  if  there  was  any  cause  for 
his  not  being  there  until  the  count  was  fully  made. — Ans.  I  do  not  know  where  he 
went  to  ;  I  know  of  no  cause  whatever  for  his  leaving. 

Int.  8.  Did  he  or  not  leave  the  room  while  the  count  was  being  made  ;  and,  if  yes, 
how  long?— Ans.  He  left  the  room,  but  as  to  how  long  I  couldn't  say  ;  I  suppose 
twenty  or  twenty-five  minutes. 

Int.  9.  Was  the  counting  out  of  the  ballots  done  publicly? — Ans.  It  was. 

Int.  10.  Was  not  the  election  at  that  bos  conducted  with  perfect  fairness  to  all  the 
candidates,  and  were  not  the  ballots  counted  fairly  ? 

(Objected  to  by  counsel  for  contestant  as  leading.) 

Ans.  It  was. 

Int.  11.  Did  Wallace  Bullard  examine  the  tickets  and  read  them  when  the  count 
was  being  made  ?— Ans.  He  did  not. 

Cross-examined  by  counsel  for  contestant : 

Cross-int.  1.  Are  you  a  Democrat? — Ans.  I  am,  sir. 

Cro88-int.  2.  How  many  elections  have  you  been  a  judge  at  Nesbitt  box? — Ans.  I 
couldn't  say;  some  eight  or  ten  years;  have  been  serving  every  election  either  as  in- 
spector or  clerk ;  sometimes  one.  sometimes  the  other. 

Cross-int.  3.  Who  were  the  other  judges  at  that  box  on  that  day? — Ans.  Mr. 
McKnight  and  one  Eli  Walker. 

Cross-int.  4.  Which  was  the  colored  man  ? — Ans.  Walker. 

Cross-int.  5.  What  part  did  you  perform  in  that  election  on  that  day  in  the  han- 
dling of  ballot*  ? — Ans.  None  whatever. 

Cross-int.  6,  What  part  did  you  perform  in  the  counting  of  the  ballots? — Ans.  None 
whatever. 

Cross-int.  7.  How  far  were  you  from  the  ballot-box  while  the  A'oting  was  going 
on? — Ans.  Some  2  feet,  I  suppose. 

Cross-int.  8.  Were  you  in  front  or  behind  the  ballot-box? — Ans.  I  was  sitting  rather 
by  the  side  of  it. 

Cross-int.  9.  How  far  was  Wallace  Bullard  from  the  ballot-box  during  the  day  ? — 
Ans.  I  suppose  some  2,  mav  be  3  feet ;  not  over  3  feet,  I  think,  any  time  during  the 
day.     (Rec,  pp.  70.3-704.)' 

Cross-int.  II.  Are  you  willing  to  swear  that  yon  saw  everything  that  was  done 
in  thp  voting  and  the  counting  of  votes  and  the  handling  of  ballots  which  Wallace 
Bullard  saw? — Ans.  No;  I  am  not  willing  to  swear  that.     (Rec,  p.  705.) 

Here  is  one  of  the  professional  election  officers,  who  has  been  serving 
for  ten  years  at  this  same  box  and  bringing  oat  Democratic  majorities 
-where  there  are  only  46  white  and  192  colored  voter.s,  and  where  the 
negroes  suspected  they  would  be  cheated,  and  to  prove  their  vote  agreed 
to  vote  oi^en  tickets,  and  did  so. 

Ed.  Ingram,  being  duly  sworn,  deposes  as  follows: 

Int.  1.  What  is  your  name,  age,  and  occupation,  and  where  do  you  reside  and  vote, 
and  how  long  have  you  resided  there  ? — Ans.  1.  My  name  is  Eil.  Ingranj ;  am  34  years 
of  age ;  am  a  farmer,  and  reside  and  vote  at  Nesbitt,  De  Soto  County,  Miss.,  and  have 
resided  there  3  years. 

Int.  2nd.  Were  you  at  Nesbitt  at  the  last  November  election  ?  And  if  yea,  state  what 
ofiBce,  if  any,  you  held  on  that  day.? — Ans.  2nd.  I  was  at  Nesbitt  at  the  last  November 
election  on  that  day,  and  was  one  of  the  judges  of  the  election. 

Ques.  3rd.  Were  you  present  from  the  time  the  polls  were  opened  in  the  morning 
until  the  ballots  were  counted  out  that  night? — Ans.  3rd.  I  was. 

Q.  4th.  Did  one  of  the  inspectors  of  election  or  any  of  the  officers  of  election  read  off 
Republican  tickets  and  call  out  Democratic  names  at  said  election  f — Ans.  4th.  No,  sir ; 
they  did  not. 

Int.  5th.  Who  did  the  counting  of  the  ballots,  and  what  were  you  doing  when  the 


CHALMERS  VS.   MORGAN.  375 

ballots  were  being  read  ? — Ans.  5.  Mr.  McKnight  did  the  reading  of  the  tickets ;  I  wonld 
take  them  ont  of  the  ballot-box  and  look  at  and  read  them,  hand  them  to  him,  and  he 
-would  read  them  off ;  he  read  them  off  correctly. 

Int.  6.  You  say  he  read  thera  out  correctly  ;  please  state  why  you  say  that  so  posi- 
tively.— Ans.  6th.  Because  I  was  right  near  him  and  would  have  seen  him  had  he  not 
read  them  correctly. 

From  this  it  will  be  seen  that  Mr.  McKnight  was  the  inspector  who 
read  the  tickets,  and  he  was  never  examined  to  prove  that  he  read  them 
correctly.  Mr.  Ingram,  who  was  examined,  was  one  of  the  clerks.  (See 
Eec,  p.  102.)  It  was  his  dnty  to  keep  the  tally-list  as  the  voters  were 
read  to  him.  It  was  no  part  of  his  duty  to  read  the  tickets  or  to  watch 
the  reading  of  them.  And  it  is  a  self-evident  fact  that  he  could  not 
discharge  the  duties  of  clerk,  and  record  the  names  on  the  poll-book  and 
watch  the  reading  and  exaraiue  the  tickets  at  the  same  time.  On  the 
other  hand,  BuUard  was  United  States  supervisor,  and  it  was  his  duty 
to  watch  what  was  being  done.  It  was  attempted  to  be  shown  that  Bul- 
lard  went  away  when  the  count  was  but  half  over,  but  Meharg  says: 

Int.  7.  You  state  he  was  there  until  the  count  was  about  half  over;  please  state 
where  he  was  the  balance  of  the  time,  if  you  know,  and  if  there  was  any  cause  fur 
his  not  being  thereuntil  the  count  was  fully  made. — Ans.  I  do  not  know  where  he 
went  to  ;  I  know  of  no  cause  whatever  for  his  leaving. 

Int.  8.  Did  he  or  not  leave  the  room  while  the  count  was  being  made ;  and,  if  yes, 
how  long ? — Ans.  He  left  the  room,  but  as  to  bow  long  I  couldn't  say;  I  suppose 
twenty  or  twentj^-live  minutes. 

But  the  most  positive  evidence  that  a  fraud  was  perpetrated  here  is 
found  in  the  fact  that  men  armed  with  Wiuchesterrifles  were  telephoned 
for  and  brought  from  Hernando  to  keep  the  peace  while  the  count  was 
being  made. 

Vincent  Smith  says : 

Q.  Did  you  see  the  military  that  was  charged  that  came  here  on  that  day  ? — A.  Yes, 
sir. 

Q.  What  time  did  you  see  them  ? — A.  It  was  late  in  the  evening,  sir. 

Q.  Were  you  or  not  at  the  train  when  they  came? — A.  No,  sir;  I  was  standing 
right  along  here  somewhere  on  the  street. 

Q.  Did  you  hear  any  remark  made  by  those  men? — A.  When  the  boys  got  off  the 
train,  got  around  here  at  the  depot,  some  asked  what  did  they  want  us  to  do  ?  but  I 
didn't  hear  any  one  return  tliem  any  answer. 

Q.  At  that  time  had  the  votes  been  counted? — A.  No,  sir. 

Q.  How  many  were  there  in*  that  crowd  ? — A.  I  do  not  know,  sir,  exactly. 

Q.  Abont  how  many  ? — A.  It  seems  to  me  might  have  been  8  or  10. 

Q.  Did  they  have  arms  ? — A.  I  don't  know  exactly.  It  seems  like  the  guns  I've 
seen  them  handle  around  in  Hernando  there;  these  IB-shootera.     (Rec.  p. 32.) 

W.  H.  Rollins,  witness  for  contestee,  says : 

Int.  6.  Did  you  or  not,  on  the  morning  of  the  last  election  on  the  6tb  of  last  No- 
vember, carry  a  squad  of  men  to  Nesbit,  in  this  county,  and,  if  so,  how  come  you  to  so 
do ;  for  what  purpose  did  you  go  ;  at  what  time  did  you  arrive  there ;  what  was  done 
by  you  and  them  while  there;  and  at  what  time  did  yon  and  they  leave  Nesbit  and 
return  to  Hernando  ? — Ans.  I  did.  There  was  received  a  telephone  message  here  stating 
that  they  feared  some  trouble  there ;  that  was  why  I  went  as  a  peace  officer,  Maj. 
Dockery,  the  sheriff,  being  away.  We  arrived  there  just  abont  the  time  the  polls 
closeu ;  I  quartered  my  men  in  a  store-house  and  left  a  guard  over  them  about  25 
yards  from  where  the  polls  were;  I  then  went  to  the  polls  and  talked  t.o  both  white 
and  black.  1  found  that  there  was  no  trouble;  I  then  moved  my  men  to  the  depot 
and  came  back  on  the  night  train  about  10  o'clock. 

Cross-int.  2.  Who  sent  the  telephone  message  from  Nesbit's  about  there  being  trou- 
ble there  on  election  day? — Ans.  My  understanding  was  that  it  was  Jim  G.  Dovie. 
I  don't  know  for  certain. 

Cross-int.  3.  To  whom  was  it  sent? — Ans.  I  don't  know ;  the  operator  told  me  of  it. 
He  didn't  say  to  whom  it  was  sent. 

Cross-int.  4.  How  many  men  did  you  have  with  yonf — Ans.  I  reckon  there  was  be- 
tweeu  If)  and  25,  probably  not  over  15. 

Cross-iut.  .5.  Was  Judge  Morgan,  the  contestee,  aware  of  your  intention  to  go  to 
Nesbit's? — Ans.  He  was  at  the  depotwhen  I  left,  but  I  never  spoke  to  him.     I  don't 


876  CHALMERS   VS.   MORGAN. 

know  that  he  knew  anything  about  it.  I  recollect  of  seeing  him  on  the  platform  of 
the  depot  when  I  got  on  the  train. 

C'ross-iut.  6.  Was  there  not  shooting  done  by  your  squad  of  men  while  at  the  depob 
at  Nesbit's? — An*.  I  can't  say.  There  wasshootiugdono  in  the  depot  room,  and  when  I 
got  in  the  room  I  had  stepped  out,  I  hollered  to  them  to  quit  that,  and  wanted  to  know 
who  it  was  shooting;  told  them  they  must  keep  qniet.  Someone  spoke  and  said  that 
it  ain't  yonr  squad.  It  is  these  other  boys  that  is  in  here.  There  were  several  other 
boj'S  from  the  neighborhood  in  there  with  tht^m. 

Cro88-iut.  7.  Your  men  were  armed,  were  they  not?— Ans.  They  were,  but  only  a 
few  of  them  had  ammunition  of  their  own.  Mr.  Woods  had  the  ammunition  of  the 
needle-guns  in  his  charge,  and  I  told  him  not  to  let  them  have  anj'  ammunition  until 
I  had  ordered  it,  or  until  it  was  necessary. 

Cro88-int.  8.  Is  Jas.  G.  Dovie,  the  man  who  sent  the  telephone  message  from  Nes- 
bit,  a  white  man  and  a  Democrat? — Ans.  He  is. 

Cross-int.  9.  T.  C.  Dockery,  the  sheriiiof  this  county,  is  a  Democrat,  also,  is  he  not; 
you  are  one  ? — Ans.  He  is,  and  I  am. 

Re-examined : 

Re-int.  1.  Did  you  or  not  understand  from  the  telephone  message  sent  from  Nesbit» 
as  stated,  that  the  colored  people  there  were  becoming  turbulent  without  cause,  and 
tiiat  that  was  the  reason  trouble  was  apprehended,  and  that  you  were  wauted  simply 
to  preserve  the  peace  if  any  effort  was  made  on  their  part  to  break  it  ? — Ans.  Yes, 
sir. 

Re-int.  2.  At  what  time  did  the  shooting  referred  to  at  Nesbit,in  the  de|iot,  occur, 
and  was  it,  or  not,  after  yon  had  gone  to  the  depot  to  take  the  train  for  Hernando  ? — 
Ans.  It  occurred  after  we  got  there  to  take  the  train  to  come  home  ;  a  short  time  before 
the  arrival  of  the  train. 

Re-int.  3.  Was  not  Mr.  Ward,  referred  to  in  your  answer  to  Cross-int.  7,  marshal 
of  Hernando,  and  a  peace  officer? — Ans.  Yes,  sir.     (Rec,  pp.  702,703.) 

The  returns  here  gave  Morgan  130  and  Cbalmers  only  105.  If  these 
returns  were  true,there  were  forty- six  white  mfmand  eighty-four  colored 
on  one  side,  and  that  they  should  have  been  so  much  alarme<l  as  to  tele- 
phone for  armed  men  to  help  them  against  one  hundred  and  tive  negroes 
is  too  ridiculous,  especially  when  the  proof  shows  that  other  boys  Jroin 
the  neighborhood  were  there  armed.  See  cross-interrogatory  6  and 
answer.  If,  on  the  other  hand,  the  returns  were  not  true,  and  the  sender 
of  the  telephone  message  knew  a  fraud  was  about  to  be  perpetrated,  it 
is  easy  to  see  why  forty-six  white  men  might  apprehend  trouble  from 
one  hundred  and  ninety-two  blacks  who  believed  themselves  roboed  of 
their  votes.  This  is  certainly  enough  to  vitiate  the  returns  here.  With 
the  returns  set  aside,  the  proof  of  the  vote  is  clearly  made  out  that  one 
hundred  and  eighty-two  colored  men  were  seen  to  hand  open  Kepublican 
tickets  to  the  election  officers.  These  returns  should  be  set  aside,  77 
added  to  Chalmers  and  130  taken  from  Morgan.  If  we  give  him  the 
forty-six  white  men  and  one  negro  Democrat,  the  count  stands : 


Clialmers. 

Morgan. 

5,  9:!0 
105 

13,621 

yio 

5,  825 

182 

13, 491 
47 

6,007 

13, 538 

Hernando  Depot. — Here  it  is  shown  that  the  box  was  taken  from  the 
presence  of  the  United  States  supervisor  at  dinner  time,  and  only  32 
votes  counted  for  Chalmers  where  114  voters  received  Kepublican  tick- 
ets and  went  with  them  to  the  polls.  This  is  unquestionably  enough 
to  set  aside  the  returns.  The  only  question  here  is  as  to  how  many 
votes  were  proved  for  Chalmers. 


CHALMERS   VS.   MORGAN.  377 

Deposition  of  A.  D.  JoLnican  (col.),  a  witness  on  behalf  of  the  contestant,  being 
first  duly  sworn,  deposed  as  follows: 

Examination  by  General  Chalmers  : 

Q.  Did  you  vote  at  the  Hernando  Depot  bos  in  De  Soto  County  at  the  last  election 
for  Congressuiau  ? — A.  Yes,  sir, 

Q.  What  ticket  did  you  vote  ?— A.  The  Republican  ticket. 

Q.  Did  you  or  not  distribute  Republican  tickets  there  that  day  or  not? — A.  I  did. 

Q.  What  instructions,  if  any,  did  you  give  to  those  who  received  those  tickets? — 
A.  1  issued  them  with  this  instruction  "  that  every  one  of  yon  who  takes  a  ticliet  and 
don't  want  to  vote  it  or  don't  vote  it  or  can't  vote  it,  bring  it  back  to  me,  because  1  am 
ordered  to  return  all  tickets  that  are  not  voted." 

(Mr.  Boyce  objects  to  this  as  being  incompetent.) 

Q.  How  many  tickets  did  you  issue  to  colored  men  that  day  ? — A.  I  issued  114,  in- 
clud  ng  one  white  man. 

Q.  How  many  tickets  were  returned  to  you  ? — A.  Seventeen. 
Cross-examination  by  Mr.  Boyce: 

Q.  How  far  were  you  from  the  ballot-box  when  yon  issued  the  tickets  yon  have  just 
spoken  of? — A.  I  was  about  as  far  as  15  feet ;  I  reckon  about  15  feet. 

Q.  Were  yon  not  at  times  when  you  were  issuing  tickets  on  that  day  much  more 
than  15  feet  from  the  polls? — A.  After  the  voting  ceased  I  was. 

Q.  While  the  voting  was  going  on  ? — A.  No,  sir ;  not  outside  of  that  limit. 

Q.  Were  you  noc  sitting  or  standing  near  the  southeast  corner  of  the  new  store  now 
being  put  up  byMackinvail  ? — A.  I  was  there  for  noon  after  they  adjourned  for  din- 
ner;^  after  the  voting  stopped. 

Q.  Were  yon  not  there  at  the  time  yon  issued  some  of  the  tickets* — A.  I  was  not. 
Let  me  correct  that.  1  issued  one  ticket  there  and  the  man  went  directly  to  the  bal- 
lot-box and  there  was  no  one  to  prevent  me  from  seeing  him  get  there. ;  ihat  is,  no 
one  in  the  way. 

Q.  In  what  direction  from  the  window  through  which  the  tickets  were  hauded  to 
the  judges,  on  the  day  of  the  last  election,  were  you  when  you  issued  the  tickets? — 
A.  In  front  of  the  window  ;  north  of  the  window. 

Q.  Can  you  say  you  saw  every  voter  to  whom  you  issued  a  ticket  on  the  day  of  the 
last  election  vote  the  identical  ticket  you  gave  him  ? — A.  Yes,  sir. 

Q.  Is  it  uot  a  fact  that  a  great  many  voters  were  standing  ar,  the  window  at  differ- 
ent times  during  the  day  with  their  ballots  ready  to  vote,  and  was  not  the  voting  at 
times  very  rapid  ? — A.  They  were  voting  very  rapidly. 

Q.  What  about  the  crowd  standing  up  there  ? — A.  The  crowd  was  there,  but  it  wao 
so  arranged  that  I  could  see  every  one  who  put  his  ticket  in ;  the  marshals  bad  a  rope 
around  near  the  window  and  each  man  had  to  come  in  through  the  east  end  of  the 
rope,  and  of  conrse  that  would  allow  each  one  to  come  in  after  the  other,  which  ena- 
bled me  to  see  each  one  distinctly. 

Q.  Did  you  see  every  colored  man's  ticket  as  he  passed  in  through  the  opening  left 
by  thi.s  rojjo?— A.  I  did. 

Q.  Did  you  see  every  man's  ticket  that  voted  at  the  last  election  as  it  was  handed 
in  to  the  judges  of  the  election  ? — A.  At  that  box  I  did. 

Q.  Did  you  issue  a  ticket  on  the  day  of  the  last  election  to  John  Brown  ? — A.  John 
Blown  lives  ont  on  Mr.  Boon's  place  ?     Yes,  I  did. 

Q.  Did  yon  see  him  vote? — A.  Yes,8ir. 

Q.  Did  you  see  that  he  voted  the  identical  ticket  you  gave  MmT — A.  Yes,  sir. 

Q.  How  far  were  you  from  him  when  he  voted  ? — A.  About  the  same  place  1  issued 
tickets  in;  about  15  feet. 

Q.  Are  you  willing  to  swear  that  John  Brown  could  not  have  voted,  and  did  not 
vole,  a  Democratic  ticket  at  the  last  election? 

(Question  repeated.)— A.  I  am  willing  to  swear  that  he  did  not  vote  it. 

Q.  Are  you  willing  to  swear  that  John  Brown  bad  no  other  ticket  in  his  possession 
on  the  day  of  the  last  election  other  than  the  ticket  you  issued  to  him  ? — A.  If  he 
had  any  other  he  voted  the  one  I  gave  him. 

Q.  (Question  repeated.) — A.  I  don't  know  ;  I  will  not  swear  that;  he  might  have 
had  one  in  his  pocket,  bnt  voted  the  one  I  gave  him. 

Q.  Arc  you  willing  to  swear  that  he  did  not  have  in  his  possession  on  that  day, 
and  at  the  time  he  voted,  a  Democratic  ticket? — A.  I  am  willing  to  swear  that  he 
voted. 

Q.  (Question  repeated.) — A.  No,  sir;  I  am  not  willing  to  swear  that;  Idon'tknow 
what  he  had  in  his  pocket. 

Q.  How,  then,  can  you  swear  that  he  voted  a  Republican  ticket  and  not  a  Demo- 
cratic ticket? — A.  Because  I  noticed  him  irom  the  time  I  gave  him  the  ticket  go 
directly  to  the  box,  and  he  could  not  exchange  it. 

Q.  Did  you  pay  that  close  attention  to  every  person  to  whom  you  issued  a  ticket 
on  the  day  of  the  last  election  f — A.  I  did. 


378 


CHALMERS   VS.   MORGAN. 


Q.  Will  yon  swear  that  all  the  voters — all  the  colored  voters  to  whom  yon  Issued 
tickets  on  the  day  of  the  last  election  dtiriug  the  day  didn't  have  in  their  possession 
and  before  they  voted  any  other  ticket  than  the  one  yon  issued  to  them? — A.  I  will 
swear  that  they  voted  the  one  I  gave  them.  I  can't  swear  that  they  didn't  have  any 
other  ticket  or  not. 

Q.  Did  the  colored  men  who  voted  at  the  box  spoken  of  by  yon  on  the  day  of  the 
last  election  vote  open  or  closed  tickets? — A.  A  portion  of  them  voted  open  tickets 
and  some  closed. 

Q.  Now,  if  yon  knew  a  nun»ber  of  the  colored  men  who  voted  at  the  election  spoken 
of  voted  closed  tickets,  how  could  you  tell  at  a  distance  of  15  feet  from  them  whether 
the  ticket  they  voted  was  the  identical  ticket  you  gave  them  or  not  ? — A.  Because 
they  folded  them  when  I  gave  them  to  them  and  went  directlj-^  to  the  box  and 
handed  them  in. 

Q.  Have  you  a  list  of  the  number  and  of  the  names  of  the  voters  to  whom  yon 
issued  tickets  on  the  day  of  the  last  election  ? — A.  I  have  a  list  of  some  of  the  names. 

Q.  Where  is  that  list  ? — A.  In  my  pocket 

Q.  Produce  it? 

(Witness  produces  this  list  and  it  is  ordered  by  the  court  to  be  made  an  exhibit  lo 
his  deposition.) 

Q.  Is  this  list  which  you  produced  the  original  list  that  you  kept  on  the  day  of  the 
election  ? — A.  Yes,  sir. 

Q.  Did  you  write  each  name  as  it  appears  on  this  paper  on  this  identical  piece  of 
paper  on  the  day  of  the  last  election  ? — A.  I  did. 

Q.  Have  you  the  block  of  stub  that  you  kept  on  the  day  of  the  last  election  ? — A. 
Yes,  sir. 

Q.  Produce  that. 

(Witness  produces  the  stubs.) 

Q.  Has  this  block  of  stubs  and  this  list  of  names  that  you  have  produced  here 
been  in  your  possession  ever  since  the  day  of  the  last  election? — A.  It  has,  but  not  in 
my  room  ;  it  is  in  my  place  of  business  where  I  work.     1  left  it  there. 

Q.  In  what  place  of  business  do  you  work  ? — A.  It  is  in  Austin  Bell's  store  when  I 
am  not  teaching. 

Q.  Did  you  not  leave  this  block  of  stubs  and  this  list  that  you  have  produced  in 
Austin  Bell's  possession  since  the  day  of  the  election? — A.  1  left  it  in  his  store,  and 
everything  that  is  in  his  store  in  his  charge  for  safe-keeping. 

Q.  Do  you  know  where  Austin  Bell  keeps  the  documents? — A.  Yes,  sir. 

Q.  Where  ? — A.  He  keeps  them  on  one  of  the  shelves,  the  second  shelf  from  the  top, 
on  the  south  side  ot  his  building,  on  the  east  end  near  the  stair-steps. 

Q.  Did  you  begin  on  the  day  of  the  election  and  issne  tickets  to  voters  as  they  are 
numbered  upon  this  list  ? — A.  No,  sir. 

Q.  Well,  then,  how  can  you  say  that  this  list  was  prepared  as  you  issued  the  tick- 
ets on  the  day  of  the  last  election? — A.  That  is,  I  had  them  down. 

Q.  What  did  you  have  them  down  on  ? — A.  On  a  piece  of  iniper. 

Q.  A  piece  of  paper  different  from  this  ? — A.  Yes,  sir.  The  paper  I  had  was  not 
clean  paper,  and  was  just  writing  hurriedly  down  there.  Just  re-wrote  them  off  on 
another  piece  of  paper. 

Q.  Then  the  fact  is  that  the  list  yon  have  produced  here  purports  to  be  a  copy  of 
the  list  you  kept  on  the  day  of  the  election,  is  that  right  ? — A.  Yes,  sir;  but  uotnum- 
bered  the  same. 

Q.  Then  why  did  you  swear  just  now  that  this  list  that  yon  here  produce  is  the 
identical  original  list  that  you  kept  on  the  day  of  the  election  ? — A.  This  is  the  origi- 
nal list. 

Q.  (Question  repeated.) — A.  I  thought  you  meant  the  papers  that  I  had.  You  said 
the  list.     I  thought  you  meant  the  lists  that  1  had.     All  the  i)apers. 

Q.  Then  you  have  another  list  than  this  that  you  kept  on  the  day  of  the  election  ? — 
A.  Yes.  sir. 

Q.  Produce  that  list. 

(Witness  produces  that  list.) 

Q.  You  have  now  produced  another  list  of  the  voters  kept  by  you  and  of  the  per- 
sons to  whom  you  issued  tickets  on  the  day  of  the  last  election,  have  you  ? — A.  Yes, 
sir. 

Q.  Is  this  last  list  that  you  hand  mo  the  original  list  that  you  kept  on  the  day  of 
the  last  election  ? — A.  Yes,  sir. 

(Mr.  Boyce  hands  him  the  last  list  produced,  which  he  says  is  the  original  list  of 
the  voters  to  whom  he  issued  tickets  on  the  day  of  the  last  election.) 

Q.  I  ask  yon  to  state  now  the  names  of  how  many  voters  appear  on  the  list  you 
hold. — A.  Seventeen  on  this  list. 

Q.  Nowl  will  ask  you  to  take  the  first  list  that  you  produced  and  which  you  also 
testify  was  the  original  list  of  the  voters  to  whom  you  issued  tickets  on  the  last  elec- 
tion, look  at  that  and  tell  me  the  names  of  how  many  voters  appear  on  that. — A. 
Eighty -four  names. 


CHALMERS  VS.   MORGAN.  379 

Q.  To  how  many  colorerl  voters  and  white  voters  did  you  issue  tickets  on  that  day 
of  the  last  election  ? — A.  One  hundred  and  fourteen. 

Q.  Did  you  issue  a  ticket  to  John  MeEntire  on  the  day  of  the  last  election? — A. 
Yes,  sir. 

Q.  Did  you  see  him  vote  the  ticket  you  gave  him? — A.  If  his  name  is  not  on  the 
rejected  list  I  saw  him  vote  it.  ' 

Q.  Then  you  can't  say  whether  his  name  is  on  the  rejected  list  or  not,  can  you  ? — 
A.  I  don't  recollect  whether  it  is  or  not. 

Q.  Then  I  ask  you  the  question,  if  you  saw  John  MeEntire  vote  at  the  last  elec- 
tion ?— A.  I  saw  him  vote  if  his  name  is  not  on  the  rejected  list. 

(Witness  is  handed  the  rejected  list.) 

Q.  Now  what  have  you  got  to  say? — A.  He  didn't  vote,  iecause  I  see  Ms  name  is  on 
the  rejected  list. 

Q.  That  is  the  only  reason  why  you  say  he  didn't  vote  is  because  his  name  appears 
on  what  you  call  the  rejected  list,  then  ? — A.  Yes,  sir. 

(Witness  now  marks  the  exhibits  A,  B,  C,  and  D,  and  they  are  made  exhibits  to 
his  deposition.) 

Q.  When  did  you  deposit  these  papers  that  you  have  marked  exhibit  A,  B,  C,  and 
D  with  Austin  Bell  ? — A.  I  left  them  there  on  the  day  of  the  election. 

Q.  When  did  you  first  see  them  again  after  you  loft  them  there? — A.  Anytime  I 
passed  along  up' and  down  the  counter  and  looked  up  on  the  shelf  I  woxild  see  them. 

Q.  Wheu  did  you  next  examine  the  papers  that  you  have  marked  A,  B,  C,  and  D 
after  leaving  them  in  the  possession  of  Austin  Bell  ? — A.  When  I  found  out  that  I  bad 
to  come  down  here. 

Q.  When  was  that? — A.  Wednesday,  next  day,  I  think.  Idon'trecollect  what  day. 
(Rec,  pp.  381-382.) 

Tbere  is  an  effort  made  to  show  that  the  list  of  17  voters  was  the  list  of 
those  who  voted,  because  it  was  called  the  original  list.  Tbere  were, 
in  fact,  two  original  lists,  one  of  those  who  voted  and  the  other  those 
rejected.  The  list  of  those  who  voted  was  written  first  on  a  soiled 
piece  of  paper  and  afterwards  copied.  Thatthe  list  of  17  was  the  list 
of  rejected  voters  was  shown  by  the  questions  asked  as  to  the  name  of 
John  MeEntire.  (See  list  Exhibits  A,  B,  0,  and  D,  Rec,  pp.,  1150, 1151  ) 
But  if  there  is  any  doubt  as  to  the  list  of  names  the  witness  swears 
positively  as  to  tlae  number,  and  when  the  Democratic  commissioner 
destroyed  the  certified  list  of  voters  all  doubt  should  be  resolved 
against  them.  The  count  here  was,  Chalmers,  32 ;  Morgan,  134 ;  G5 
should  be  added  to  Chalmers  and  134  taken  from  Morgan.  And  if  we 
give  to  Morgan  the  white  votes  here  the  count  stands  :. 


Chalmers. 

Morgan. 

Brotigbt  forward 

6,007 
32 

13,  538 

134 

Add  (as  proved) .. .............. 

5,975 
97 

13,404 
69 

6,072 

13, 473 

In  weighing  the  proof  as  to  frauds  and  votes  at  these  two  Hernando 
boxes,  it  is  proper  to  remember  that  Hernando  is  the  home  of  the  "  De 
Soto  Blues,"  a  campaign  military  company,  composed  of  "unterrifled  and 
determined  Democrats,"  the  "old  guard,"  which  is  re-organized  for 
every  national  campaign,  and  was  reorganized  for  the  campaign  of  1888 
on  October  7,  1888  with  D.  M.  Slocuurab,  postmaster  at  Hernando,  as 
captain.  (See  Exhibit  B  to  J.  R.Chalmers's  deposition,  Rec,  p.  238 ;  see 
testimony  of  D.  M.  Slocumb,  Rec,  (>.  664,  Cross-intrgs.  1  to  6;  see  testi- 
mony of  Sowell  Newsome,  Rec,  p.  1036,  Ques.  13.) 

There  was  continual  tiring  of  guns  and  pistols  in  Hernando  on  the 
night  before  the  election,  as  well  as  on  the  day  of  the  election,  and  So- 
well  Newsome,  the  oldest  white  Republican  in  the  county  of  De  Soto,  was 
afraid  to  go  to  the  polling  place  to  vote  for  fear  his  life  would  be  taken. 


380  CHALMERS   VS.   MORGAN. 

(See  testimoDy  of  Austin  Bell,  Rec,  p.  157 ;   see  testimony  of  Sowell 
Newsoine,  Rec,  p.  1036,  Inter.  10  and  Cross-inter.  1.) 

It  would  naturally  be  supposed  that  thecontestee  would  try  by  proof  to 
remove  the  stigma  of  such  shameful  violations  of  law  from  his  friends  and 
supporters  at  his  home,  but  no  attempt  to  do  so  worthy  of  notice  is  dis- 
closed in  the  record,  and  we  must,  therefore,  either  conclude  that  the 
charges  are  true,  or  that  the  contestee  in  this  matter  forsook  and  forgot 
his  friends  and  his  home,  and  determined  to  let  the  shame  of  these  frauds 
rest  upon  them  and  upon  his  certificate.  He  did  not  examine  John  B. 
West,  the  Democratic  inspector  who  bull  dozed  and  intimidated  the 
United  States  supervisor  at  theelection.  He  did  not  examine  Mr.  Riley, 
the  man  who  voted  the  scratched  ticket.  Yet  they  were  both — West 
and  Riley — within  his  reach  any  of  the  forty  days  of  his  time  for  taking 
testimony.  He  did  not  explain  why  his  Democratic  inspectors  on  the 
day  of  election  appointed  a  negro  to  represent  the  Republicans,  who 
was  ignorant  and  Democratic. 

HERNANDO  CODRT-nOUSE  BOX. 

Evidences  of  fraud. — (1)  There  was  no  Republican  inspector,  the  ne- 
gro put  in  to  represent  tlie  Republicans  being  illiterate  and  ignorant, 
and  voting  the  Democratic  ticket.  He  did  not  even  live  in  this  voting 
l)recinct.  (See  testimonv  of  J.  E.Walker,  Rec,  p.  150;  seetestimonv 
of  Austin  Bell,  Rec,  pp."^156,  157  ) 

(2)  The  ballot  box  was  taken  out  of  the  presence  of  the  United  States 
sui)ervisor,  and  taken  off  to  dinner  and  supper  before  being  counted, 
and  the  supervisor  was  intimidated  and  insulted  by  John  B.  West,  one 
of  the  Democratic  inspectors,  who  told  said  supervisor  he  had  nothing 
to  do  with  the  election.    (See  testimony  of  J.  E.  Walker,  Rec,  pp.  150, 151.) 

(3)  One  Mr.  Riley,  a  "cussin"  preacher,  voted  a  scratched  Demo- 
cratic ticket,  and  no  scratched  ticket  was  counted  out.  (See  testimony 
of  J.  E.  Walker,  Rec,  pp.  151-156;  see  testimony  of  J.  J.  Evans,  Rec, 
p.  383.  i 

Proof  of  vote. — J.  J.  Evans  was  the  challenger  for  the  Republicans, 
and  stood  where  he  could  see  the  negroes  get  their  Republican  tickets 
from  Mike  Robinson,  and  said  voters,  after  getting  their  tickets,  would 
pass  immediately  b^^  Evans  and  vote.  In  this  way  Evans  swears  he 
saw  157  straight  Republican  tickets  voted  by  the  colored  men.  (See 
testimony  of  J.  J.  Evans,  Rec,  p.  383.) 

In  this  statement  of  the  Republican  vote  Evans  is  fully  sustained  by 
J.  E.  Walker,  the  United  States  supervisor.  Walker  shows  that  there 
were  between  175  and  180  colored  voters  who  voted  at  this  box  at  said 
election,  and  he  gives  a  list  of  the  colored  and  white  men  who  voted, 
and  says  that  only  five  negroes  were  suspected  of  voting  the  Demo- 
cratic ticket;  that  the  support  of  the  contestant  by  the  Republicans 
was  almost  unanimous.  (See  testimony  of  J.  E.  Walker,  Rec,  p.  151, 
and  Exhibit  A  to  his  deposition,  Rec,  p.  1148,  said  exhibit  showing 
the  respective  number  of  colored  and  white  voters.) 

The  returns  here  being  vitiated,  the  account  stands  thus: 


Chalraers. 

MorjraD. 

6,072 
49 

13, 473 

45 

Brought  forward 

Hernando  Court- House ; 

Add 

Deduct  


C,  i21  13,424 


CHALMERS   VS.    MORGAN. 


381 


This  gives  Morgan  all  the  white  votes  and  five  negroes,  and  gives 
to  Chalmers  the  vote  as  proved  above. 


the  vote  as  proved  above. 

love's. 

Evidences  of  fraud. — (1)  The  Republican  inspector  could  neither  read 
nor  write.     (See  testimony  of  R.  G.  Orr,  Rec,  p.  384.) 

(2)  The  ballot-box  was  taken  out  of  the  presence  of  the  United  States 
sui)ervisor  before  beinji  counted,  and  carried  a  half  mile  from  the  polls 
to  the  house  of  J.  D.  Mosely,  one  of  the  Democratic  inspectors,  and 
the  said  Democratic  iuspictor  refused  to  allow  the  supervisor  to  follow 
the  box.     (See  testimony  of  R.  G.  Orr,  Rec,  pp.  385,  386.) 

Proof  of  vote. — The  witness.  R.  G.  Orr,  saw  112  men  vote  the  Repub- 
lican ticket.  He  is  supported  in  this  by  Mr.  Strong,  ticket  distributor 
for  the  Republicans;  and  Strong  also  proves  that  six  negroes  and  one 
white  mau  were  refused  a  vote  on  frivolous  pretexts.  (See  testimony 
ot  R.  G.  Orr,  Kec,  p.  384;  see  testimony  of  M.  Strong,  p.  386.) 

The  ceitified  returns  gave  contestant  60,  and  contestee  162  votes. 
But  the  above  proof  shows  the  vote  should  be  counted  as  follows: 


Chalmers. 

Morgan. 

6,121 
52 

13,424 

AM    

Deduct , 

162 

6,173 

13,  262 

2so  votes  being  proved  for  Morgan  at  the  above  box. 

OAK   GllOVE. 

At  this  box,  as  at  all  others  in  De  Soto  County,  the  Republicans 
asked  for  suitable  inspectors,  and  they  were  refused.  (See  Austin  Bell, 
Rec,  p.  156.)  At  this  box  it  is  proved  that  a  negro  who  was  well 
known  as  a  Democrat  was  appointed  as  inspector  to  represent  the 
Republicans.  Dr.  W.  S.  Weisinger,  a  witness  for  contestee,  was  ex- 
amined to  prove  that  there  were  negroes  in  De  Soto  County  who  were 
well-known  Democrats.  He  names  fifteen  in  the  county,  where  are  3,000 
negro  voters,  and  among  them  names  Jack  Harris  at  Oak  Grove.  (Rec, 
p.  751.) 

J.  M.  Weisinger,  Democratic  United  States  supervisor,  proves  that 
.Tack  Harris  was  one  of  the  inspectors  at  that  box,  and  the  list  of  voters 
kept  by  both  United  States  supervisors  i^hows  that  Jack  Harris  voted 
last  and  just  after  the  inspectors,  clerks  and  United  States  supervisors, 
and  was  colored.  All  the  other  inspectors  and  clerks  were  white  men. 
This  refusal  of  the  Democratic  commissioner  to  appoint  an  inspector 
asked  for  by  the  Republicans,  and  the  appointment  of  a  negro  Demo- 
crat, is  under  the  rule  laid  down  in  McDutfie  vs.  Turpiu  enough  to  set 
aside  the  return  here. 

The  Democratic  supervisor  says : 

The  election  was  fair  and  quiet,  and  no  cheating  that  I  know  of. 

Cross- int.  12.  You  don't  pretend  to  say  that  there  could  not  have  been  fraud  in  the 
election  at  that  box  on  that  day  without  your  seeing  it,  do  you?— Ans.  I  do  pretend 
to  say  that  there  was  no  ballot-box  stuliUn^  or  miscounting  of  the  votes. 

Cross-int.  13  How  can  you  say  there  was  no  ballot-box  stuffing  when  you  say  that 
you  were  out  of  sight  of  the  box  during  the  day?— Ans.  Every  time  I  left  tlie  box 
Conway  Rutherford,  the  Republican  surpervisor,  was  left  in  sight  of  it;  and  if  he  was 
out  of  sight  of  the  box  3  minutes  all  day  I  don't  know  it.  Ho  deuied  having  eoeu 
anything  wrong  that  evening,  and  I  saw  nothing  wrong. 


382  CHALMERS   VS.   MORGAN. 

Cross-int.  14.  How  do  you  know  that  Conway  Rutherford  was  in  sight  of  the  hox 
when  you  were  out  of  sight  of  it? — Ans.  I  was  not  out  of  sight  of  the  box  only  for  a 
minute  or  two  at  a  time  and  part  of  that  time  was  in  sight  of  Rutherford. 

Cross-int.  15.  How  nuuiy  times  have  you  held  an  otficial  position  at  that  box  in  an 
election  ? — Ans.  Several  times.     I  couldn't  be  definite  about  it. 

Cross  int.  16,  Who  were  the  judges  there  that  day? — Ans.  I  think  Simon  Walton, 
H(jye8  Robinson,  and  Jack  Harris  were  inspectors,  and  Thad.  Oliver  and  Henry  Harris 
were  the  clerks. 

Cros.s-int.  17.  Were  not  the  Republicanssurprised  at  the  result  as  announced  there? — 
Ans.  I  think  they  were  from  what  they  said.     (Rec,  pp.  650,651.) 

This  statement  shows  tliat  liis  declaration  that  there  was  no  fraud  is 
made  upon  the  ground  that  he  saw  none,  and  that  the  Kei)ublican 
supervisor  said  that  ev^ening  that  he  saw  none.  But  the  record  in  this 
case  shows  that  the  United  States  supervisors  at  Batesville,  Como, 
and  Longtown  each  said  they  could  see  no  fraud.  But  fraud  was 
proved  at  each  of  these  places.  At  Batesville  the  Democratic  inspector 
boasted  that  he  changed  200  tickets.  At  Como  the  fraud  wa.s  proved 
by  calling-  the  voters  themselves,  and  at  Longtown  two  voters  saw  the 
inspector  changing  their  tickets.  But  both  the  United  Stat«^s  super- 
visors here  say  that  they  were  busy  writing  down  the  names  of  voters  and 
examining  the  poll-books,  and  this  might  well  prevent  them  from  seeing 
what  was  done  when  the  votes  were  received  and  put  into  the  box. 
That  some  trick  had  been  played  is  shown  by  the  fact  that  here  the 
unusual  thing  was  agreed  on  before  the  counting  com(nenced  of  hand- 
ing the  tickets  to  the  Kepublicau  inspector  to  read,  and  then  the  laugh- 
ing at  him  when  he  read  it. 

J.  n.  Weisinger  says: 

Cross-examined  by  att'y  for  Chalmers : 

Cross-int.  1.  Where  were  you  during  the  day  ? — Ans.  In  the  school-house  all  the 
day. 

Cross-int.  2.  Were  you  so  situated  all  the  day  that  you  could  see  Stroud  ? — Ans. 
The  seat  that  I  occupied  or  was  assigned  by  the  inspectors  was  in  plain  view  of  where 
Stiond  was  all  day. 

Cross  int.  3.  How  far  were  you  from  the  box  ? — Ans.  About  6  or  8  feet. 

Cross  int.  4.  It  was  not  an  impossibility  for  Stroud  to  see  those  to  whom  he  gave 
tickets  approach  the  window  where  the  votes  were  being  handed  in,  was  it  ?• — Ans. 
No,  sir;  it  was  not  impossible;  he  could  see  them  until  they  got  up  to  where  the 
crowd  was. 

Cross-int.  5.  What  duties  did  you  perform  that  day  at  the  Oak  Grove  box  as  a  U.  S. 
inspector  ? — Ane.  I  examined  the  poll-books  and  saw  that  no  name  that  was  duly  reg- 
istered was  rejected,  and  assisted  in  keei)iug  a  list  of  all  the  votes  cast,  and  attended 
toother  duties  ;  one  or  the  other  of  us  was  in  sight  of  the  ballot-box  al'  the  wliile. 

Cross-iut  6.  You  did  not  stay  with  the  ballot-box  all  day  yourself,  did  you  ? — Ans. 
Yes,  sir;  the  ballot-box  was  in  the  house  all  the  day,  and  I  was  in  sight  of  it  nearly 
all  the  time  except  when  called  out  to  attend  nature's  calls  until  it  was  counted  out. 

Ci"oss-iut.  7.  Who  did  the  counting  of  the  votes  ? — Ans.  The  agreement  we  all  had 
when  they  started  to  counting  the  votes  was  that  the  inspectors  of  the  election  call 
the  vote  and  hand'  the  tickets  to  the  Republican  sup.  to  see  that  they  were  called 
right ;  and  I  kept  tally-sheet  to  see  that  they  were  counted  right. 

Redirect  examination: 
Int.  1.  You  have  stated  that  you  started  out  on  an  agreement  that  the  inspectors 
shonld  read  the  ticket,  hand  it  to  the  Federal  Republican  supervisor  and  that  you 
would  help  keep  tally;  was  this  carried  out  to  the  end? — Ans.  It  was  carried  out 
nmil  we  got  nearly  through  counting  the  vote;  I  suppose  we  lacked  about  .30  votes, 
and  then  the  United  States  supervisor  became  careless  as  to  whether  he  read  the 
tickets  or  not ;  they  were  all  hauded  him  however. 

Recross-examined : 

Recross-iut.  Why  did  the  Republi(>an  supervisor  quit  reading  the  tickets,  as  you 
have  said  he  did? — Ans.  Well,  that  is  a  question  I  can't  answer;  I  didn't  ask  him, 
anil  don't  remember  of  hearing  him  say  why. 

Recross-int  2.  Were  not  the  Democrats  around  the  polls  laughing  al  and  ridicul- 
ing him  ? — Ans.  They  were  not  laughing  at  or  ridiculing  him;  they  were  joking  him 
in  a  good  natured  way.  They  were  laughing  at  him,  and  oking  him  in  a  good- 
uatured  way.     (Rec,  ij^j.  050-C51.) 


i 


CHALMERS   VS.   MORGAN.  383 

It  was  evidently  a  good  joke  that  where  209  negroes  and  50  white 
men  voted  the  count  should  show  205  for  Morgan,  54  for  Chalmers,  and 
especially  when  no  negro  is  examined  to  prove  that  he  voted  for  Mor- 
gan, and  the  only  white  man  who  swears  anything  about  the  negroes 
voting  the  Democratic  ticket  names  only  eight  negro  Democrats  at  Oak 
Grove.     [Rec,  p.  751.] 

At  this  box  Thomas  Stroud  distributed  Republican  tickets  and  kept 
the  stub  tor  each  ticket  he  gave  to  a  voter ,^  and  watched  the  voter  go 
and  put  it  in  the  box  (see  testimony  of  Thomas  Stroud,  record  391), 
and  he  exhibits  with  his  deposition  the  stubs,  209  in  number.  (See 
Exhibits  A  and  B  to  his  deposition.     Rec,  p.  1151.) 

Deposition  of  Thomas  Stroud,  colored,  a  witness  in  behalf  of  the  contestant,  being 
first  duly  sworn,  deposed  as  follows : 

Examined  by  Gen.  Chalmers  : 

Q.  Did  you  vote  at  the  Oak  Grove  box  at  the  last  election  for  Congressman? — A. 
Yee,  sir. 

Q.  Did  you  vote  the  Republican  or  the  Democratic  ticket  ? — A.  Republican  ticket. 

Q.  Can  you  read  and  write  ? — A.  Yes,  sir. 

Q.  Did  you  distribute  tickets  or  not  ? — A.  I  did.    .(Record,  p.  391.) 


Q.  How  close  were  you  to  the  polls  when  you  were  distributing  these*  tickets  ? — A. 
Well,  I  were  told  to  stay  30  feet  irom  the  polls  by  Mr.  John  Walton,  the  deputy,  and 
I  stayed  as  near  20  or  30  feet  as  I  could  squeeze  inside  of  the  jiolls  on  front  of  the 
window  where  they  were  casting  tickets. 

Q.  Did  you  try  to  see  how  the  men  voted  that  you  gave  tickets  to? — A.  They 
voted  the  tickets  I  gave  them  so  far  as  I  could  see,  and  the  way  that  I  worked  to  see 
how  they  voted,  I  made  them  men  stand  behind  me,  behind  the  trees,  and  I  would 
tear  off  one  ticket  at  the  time  and  give  it  to  the  man  iind  said  to  hold  it  in  your 
hand  and  not  put  it  in  the  top  and  keep  it  where  I  can  see  it,  if  you  are  a  Republican 
man,  and  I  watched  them  and  gave  them  slow  so  that  I  could  see. — (Rec.  pp.  391-392.) 

Deposition  of  Conway  Rutherford  (col.),  a  witness  on  behalf  of  the  contestant ; 
being  first  duly  sworn,  deposed  as  follows: 

Examination  by  Gen.  Chalmers  : 

Q.  Did  yon  vote  at  the  Oak  Grove  box,  in  De  Soto  County,  at  the  last  election  for 
Congressman  ? — A.  Yes,  sir. 

Q.  Did  you  vote  the  Republican  or  the  Democratic  ticket  ? — A.  I  voted  the  straight 
Republican  ticket. 

Q.  Can  you  read  and  write  ? — A.  Yes,  sir. 

Q.  Did  you  occupy  any  official  position  at  the  last  election  ;  if  so,  what? — A.  Well, 
I  occupied  my  position  inside  of  the  house. 

Q.  What  officer  were  you  f — A.  Supervisor;  United  States  supervisor. 

Q.  Were  you  couueoted  in  any  way  with  the  Republican  clubs  in  your  neighbor- 
hoods?— A.  I  was,  sir. 

Q.  How  many  clubs  were  they? — A.  Three  clubs. 

Q.  Have  you  any  book  showing  the  names  ot  the  three  clubs  ?-  A.  Yes,  sir  ;  I  have. 

Q.  Il&s'e  you  any  list  of  the  colored  voters  who  voted  there  that  day  ?— A.  Yes,  sir. 

Q    Does  your  list  show  the  number  of  white  voters  as  well  as  colored  ? — A.  Yes,  sir. 

Q.  Please  produce  your  list  and  let  me  examine  it.  The  list  of  voters,  the  list  you 
made  on  the  day  of  the  election,  1  want  that  if  you  have  it. 

(Witness  produces  a  book  in  which  he  says  the  list  is.)    (Rec,  p.  508.) 

(See  Exhibit ;  Rec,  pp.  11.35,  113G,  1137.) 

Q.  Do  you  know  any  white  man  who  voted  the  Republican  ticket  there  that  day  ? 
If  so,  give  his  name. — A.  John  Hollo wman  to  my  knowledge. 

Q.  l3o  you  know  any  colored  man  who  voted  the  Democratic  ticket  there  that 
day? — A.  I  do. not,  sir. 

Q.  Did  or  not  ail  of  the  men  whose  name  you  have  read  belong  f  o  the  three  Repub- 
lican clubs  you  have  mentioned  ?— A.  Excepting  one,  that  was  John  IloUoman;  he  is 
a  white  man ;  all  these  colored  men  that  I  have  called  belong  to  the  club. 

Q.  Can  you  say  whether  they  did  or  did  not  vote  the  Republican  ticket  there  that 
day  ? — A.  They  did  vote  the  Republican  ticket. 

Q.  How  do  you  know  that? — A.  The  meu  that  were  issuing  the  tickets  stood 
right  there  and  give  them  their  tickets  and  they  came  and  all  stood  distinctly  from 
the  white  voters,  and  we  had  a  man  there  to  see  that  he  got  no  other  ticket  but  the 
Republican  ticket ;  and  they  come  tbevo  witU  tUo  tickets  and  ttieir  tickets}  were  cast 
there.     (Rec,  p.  509.) 


384 


CHALMERS   VS.   MOKGAN. 


The  history  of  this  box  shows  that  it  was  rejected  for  fraud  iu  1880 
(see  Buchanan  vs.  Mauuiug,  Digest  Election  Cases,  296).  From  this 
the  returns  should  be  set  aside,  which  gave  Chalmers  54,  Morgan  205. 
Give  Morgan  all  the  whites  but  1,  and  the  negro  Democrat  50.  Add  to 
Chalmers  148,  take  from  Morgan  155,  and  the  count  stands : 


• 

Chalmers. 

Morgan. 

6,173 
148 

13,262 

Oak  Grove : 

Add 

165 

6,321 

13,107 

EUDORA. 

(1)  Evidences  of  fraud. — There  was  i!0  United  States  supervisor  for 
the  Republicans,  because  the  one  appointed  refused  to  act,  for  fear  his 
lite  would  be  taken.  (See  testimony  of  W.  G.  Beanland,  Rec,  p.  1013, 
Re  cross- inters.  1  and  2.) 

(2)  The  negio  inspector  appointed  to  represent  the  Rei)ublicans 
could  not  read  and  write.  (See  testimony  of  Rev.  Jobe  Harrol,  Rec,  p. 
969.) 

Proof  of  vote. — According  to  the  certitied  returns  there  were  336 
votes  cast — 136  for  contestant  and  200  for  contestee.  (See  certified 
returns,  Rec,  p.  741.) 

Rev.  Jobe  Harral,  a  Democrat,  and  the  only  witness  who  testified  as 
to  the  vote  at  this  box,  proves  that  not  more  than  60  white  people 
voted  at  ihis  election,  and  that  there  are  not  more  than  100  entitled  to 
vote  there. 

He  swears  that  he  issued  five  or  six  Democratic  tickets  with  Mor- 
gan's name  scratched  and  Chalmers's  written  on  (Rec,  p.  969),  and  that 
he  voted  a  Prohibition  ticket  with  Chalmers  for  Congress.  No  such 
ticket  was  returned.  It  is  returned  136  for  Chalmers,  200  for  Morgan. 
The  general  fraud  proved  in  this  county,  the  failure  to  count  the  Pro- 
hibition ticket  and  the  five  scratched  Democratic  tickets,  the  refusal  to 
allow  the  Republicans  an  inspector  of  their  own  choosing,  and  the  ap- 
pointment of  an  ignorant  negro  to  represent  them  at  this  box,  and  the 
counting  of  200  votes  for  Morgan  when  the  Democratic  primary  elec- 
tion showed  only  121  votes,  and  when  Harrall  swears  only  60  white 
men  voted,  is  sufiicient  to  set  aside  the  return.  But  two  witnesses  are 
examined  for  contestee.  Nichols  says  it  is  regarded  as  a  white  box 
(Rec,  p.  646).  Dr.  S.  M.  Watson  says  if  all  the  negroes  were  regis- 
tered and  voted  there  would  be  a  small  Republican  majority  (Rec, 
p.  648,  cross-interrogatory  20). 

In  1886,  when  Harrall  was  United  States  superviser  there,  Chal- 
mers beat  Morgan  more  than  two  to  one.    (See  returns  from  Rec,  735.) 

Harrall  declined  to  be  United  States  supervisor  this  time,  because 
he  was  afraid  of  his  life.  He  furnishes  two  lists  of  the  names  of  219 
persons  to  whom  he  and  Curtis  Neal  issued  tickets  for  Chalmers,  and 
he  swears  he  believes  they  were  voted  by  them  (see  lists  Rec,  pp. 
1060,  1061,  1062.)  A  trick  was  played,  or  attempted  to  be  i)layed,  on 
Harrall  by  Democrats  to  get  Republican  tickets  from  him,  with  the  evi- 
dent purpose  of  showing  that  all  who  received  tickets  from  him  were 
not  Republicans  (Rec,  p.  648.)  Harrall  knew  they  were  Democrats, 
and  gives  their  names  (Rec,  p.  970),  and  none  of  these  names  aijpear 


CHALMEES    VS.    MORGAN.  385 

on  the  list  of  those  he  gives  as  voting  for  Chalmers.  Chalmers  is 
counted  136,  when  the  ticket-distributors  give  the  names  of  219  who 
they  believed  voted  for  him.  The  returns  being  set  aside,  and  no  posi- 
tive proof  of  the  vote,  the  count  should  be,  take  136  from  Chalmers  and 
take  200  from  Morgan.    The  count  then  stands : 


Chalmors. 

Morgan. 

6,321 
136 

13, 103 
200 

Eutlora: 

6,185 

12,908 

LAUDERDALE. 

Evidences  of  fraud. — (1)  The  ballot-box  was  taken  out  of  the  pres- 
ence of  the  Republican  United  States  Supervisor,  and  carried  to  the 
house  of  one  Lauderdale,  and  the  said  supervisor  was  not  permitted  to 
follow  the  box.     (See  testimony  of  Henry  Moore,  Eec.  393.) 
Cross-examiued  by  Mr.  Boyce  : 

Q.  Were  you  in  the  room  where  the  ballot-box  was  situated  all  day  during  the 
election  while  the  voting  was  going  on? — A.  Yes,  sir;  I  was  there  until  noon,  sitting 
right  there  till  the  box  went  to  dinner. 

Q.  Where  were  you  in  the  afternoon? — A.  I  was  with  the  box  until  it  went  to  din- 
ner, then  I  didn't  go  any  further. 

Redirect  examination  by  Mr.  Pate  : 
Q.  You  said  that  yon  followed  the  box  to  the  yard  and  was  forbidden  to  follow  it 
any  further ;  who  forbid  you  ?— A.  Lovey  Glin,  Bob  Lauderdale,  and  Geo.  Lauderdale. 
(Objected  to.) 
Q.  Where  was  the  box  taken  ? — A.  It  was  carried  into  Dr.  Lauderdale's  house. 

W.  L.  Glenn,  a  witness  for  contestee,  was  duly  sworn,  and  deposeth 
as  follows,  to  wit: 

Int.  1.  What  is  your  name,  age,  place  of  residence,  and  where  do  you  vote? — Ans. 
My  name  is  W.  L.  Glenn ;  age,  50  years;  reside  at  Lauderdale,  and  vote  at  Lauder- 
dale, Do  Soto  Co.,  Miss. 

Int.  2.  Were  you  present  at  said  box  during  the  day  of  the  election  on  the  6tli  of 
Nov.,  1888?— Ans.  I  was. 

Int.  3.  Did  you  or  not  hold  a  position  at  that  election,  and  if  so,  what  position  ? — 
Ans.  I  did  ;  was  clerk  of  the  election  at  that  box. 

Int.  4.  Give  the  names  of  the  U.  S.  supervisor  and  inspector  of  election  at  that  box 
on  that  day  for  the  Republicans  ?— Ans.  Henry  Moore  was  the  U.  S.  supervisor  and 
Wash   Johnson  was  the  inspector  of  the  election  for  the  Republicans. 

Int.  5.  Henry  Moore  stated  in  his  examination  for  contestant  that  the  ballot-box 
at  Lauderdale  was  carried  to  the  house  of  Dr.  A.  D.  Lauderdale  at  noon  on  the  day  of 
said  election,  and  that  the  officers  of  the  election  representing  the  Democratic  party 
forbade  him  to  follow  the  box.  State  what  you  know  with  reference  to  this  matter, 
and  whether  or  not  you  went  with  said  box  to  said  place  at  that  time  ?— Ans.  I  was  clerk 
there  on  the  day  of  the  election  aforesaid,  and  at  about  12.15  o'c.  Dr.  A.  D.  Lauder- 
dale invited  us  to  dinner.  We  then  sealed  and  locked  the  box,  giving  the  key  to  the 
Republican  inspector,  and  went  from  the  store  to  Dr.  Lauderdale's  house.     At  the 


tiiiishiug  dinner,  J.  R.  Lauderdale  took  the  seat  of  E.  D.  Lauderdale  at  the  gate. 
Wf,  told  Henry  Moore  we  had  no  right  to  ask  him  into  a  gentleman's  parlor.  He 
*.urned  and  went  off  among  the  other  negroes  upon  the  hill.  The  Republican  inspector 
was  sitting  in  the  front  door  of  the  parlor  with  the  key  of  the  box.    (Rec,  p.  (561.) 

H.  Mis.  137 25 


386  CHALMERS    VS.    MOEGAN. 

PROOF  OF  VOTE  CAST. 

Henry  Moore  (col,),  a  witness  on  behalf  of  the  contestant,  being  first  duly  sworn, 
deposes  as  follows : 

Direct  examination  by  Mr.  Pate  : 

Q.  Did  you  vote  at  Lauderdale  box  at  the  last  Congressional  election  ? — A.  Yes,  sir. 
Q.  Did  you  vote  the  Rep.  or  Dem.  ticket? — A.  The  Rep.  ticket. 
Q.  Can  you  read  and  write? — A.  Yes,  sir. 

Q.  Did  you  occupy  any  official  position  at  that  box  ? — A.  Yes,  sir ;  I  was  supervisor. 
Q.  Do  you  know  how  many  colored  men  voted  at  that  election? — A.  Yes,  sir. 
Q.  About  how  many  ? — A.  60  colored  men  voted  there. 
Q.  How  many  white  men? — A.  I  don't  know. 
Q.  Do  you  know  how  the  colored  men  voted? — A.  Yes,  sir. 
Q.  How  did  they  vote? — A.  Rep  tickets. 

Q.  All  of  them?  How  do  you  know  they  voted  the  Rep.  ticket? — A.  Because  we 
was  in  a  club  and  I  seen  how  they  voted  their  tickets.    (Rec.  p.  393.) 

Upou  this  testimony  the  box  is  vitiated  and  there  is  proved  60  votes 
for  Chalmers  and  none  for  Morgan.  The  returns  here  were  27  for 
Chalmers  and  111  for  Morgan.  Add  33  to  Chalmers  and  take  111  from 
Morgan,  the  count  would  then  stand : 


• 

Chalmers. 

Morgan. 

6,185 
33 

12  908 

Lauderdale: 

Add 

111 

6,218 

12, 797 

STEWART'S. 

This  box  was  stt)len  while  in  possession  of  the  Democratic  inspectors, 
and  before  it  had  been  returned  to  the  county  election  commissioners. 
The  result  was  never  certified  or  made  known  in  any  way  to  the  county 
commissioners  or  the  secretary  of  state.  The  box  contained  a  majority 
of  73  for  contestant. 

R.  T.  Lamb,  a  witness  for  contestee  being  present,  was  duly  sworn  and  examined, 
as  follows,  to  wit : 

Int.  1.  What  is  your  name,  age,  and  occupation,  and  where  do  you  reside  and 
where  do  you  vote  ? — Ans.  My  name  is  R.  T.  Lamb  ;  35  years  old  ;  am  a  farmer  and 
a  Democrat,  and  reside  near  Walls  Station,  on  the  Valley  Road,  in  De  Soto  County, 
Miss.,  and  vote  at  Stewart's  box,  which  is  about  18  miles  from  Hernando. 

Int.  2.  Where  were  you  on  the  day  of  the  Congressional  election  in  Nov.,  1888? — 
Ans.  I  was  at  Stewart's  box  ;  I  served  as  one  of  the  judges  at  that  box. 

Int.  3.  Were  you  there  as  such  judge  from  the  time  the  polls  were  opened  until  they 
were  closed  and  the  ballots  counted  ? — Ans.  I  was. 

Int.  4.  Did  you  participate  in  the  counting  out  of  the  ballots  ? — Ans.  I  did. 

Int.  5.  Please  state  how  many  were  present  when  the  ballots  were  counted  out,  and 
give  their  names,  if  you  can. — Ans.  There  were  seven  of  us ;  myself  and  Pete  Smith 
as  judges,  Adam  Rice,  a  U.  S.  supervisor  of  election,  Walker  Peebles  and  Will  Wil- 
liamson were  the  clerks,  and  Hamp  Royner  he  was  a  judge  also. 

Int.  6.  Were  the  votes  counted  out  and  the  tally-sheets  kept  in  the  presence  of  those 
you  have  just  mentioned? — Ans.  Yes. 

Int.  7.  What  became  of  the  tally  sheets  and  the  ballots  after  the  counting  had  been 
completed  and  the  result  ascertained  ? — Ans.  They  were  put  in  the  box  and  locked  up. 

Int.  12.  Was  the  result  announced  after  the  ballots  had  beeu  counted  out,  and  were 
all  seven  of  these  judges,  clerks,  and  supervisors  present,  and  did  they  or  not  hear 
and  know  the  result  ? — Ans.  Yes. 

Int.  14.  What  become  of  that  box?— Ans.  During  the  night  we  heard  some  one  in 
the  room,  and  an  alarm  was  given  and  we  got  up  and  struck  a  light  to  see  who  it  was 
or  what  it  was,  and  we  found  the  ballot-box  gone. 


CHALMERS    VS.    MORGAN.  387 

Int.  15.  Please  state  tlje  result  of  the  election  at  that  box. — Aus.  My  recollection  is 
that  it  gave  the  Republicans  73  majority. 

Cross-examined  by  att'y  for  contestant: 
Cross-int.  1.  Tliere  was  73  majority,  as  you  recollect,  for  the  whole  Republican 
ticket,  was  there  not  ? — Ans.  That  is  my  recollection. 

From  this  73  should  be  added  to  Chalmers  and  the  count  will  then 
stand : 


Morgan. 

Brought  forward C,218  12,797 

Stewarts : 
Add. 

12,  797 
INGRAM  MILLS. 

This  box  was  never  returned,  but  an  election  was  held,  and  the  only 
l)roof  as  to  the  vote  shows  that  118  colored  men  voted  the  Eepublican 
ticket  with  the  name  of  contestant  on  it  for  Congress. 

There  is  no  proof  of  any  vote  for  contestee,  and  his  friends  having 
stolen  the  box  the  presumption  should  be  all  against  him.  We  there- 
fore claim  118  majority  for  contestant.  (See  testimony  of  J.  W.  Love, 
Eec,  p.  389.) 

Deposition  of  J.  W.  Love  (colored),  a  witness  on  behalf  of  contestant,  being  first 
duly  sworn,  deposed  as  follows : 

Examination  by  Gen.  Chalmers  : 

Q.  Did  you  vote  at  the  Ingram  Mill  box,  in  De  Soto  County,  at  the  last  election  for 
Congressman  ? — A.  I  did. 

Q.  What  ticket  did  you  vote  ? — A.  Eepublican  ticket. 

Q.  Did  you  distribute  Republican  tickets  at  that  box  that  day? — A.  I  did. 

Q.  How  many  Republican  tickets  did  you  distribute  that  day  ? — A.  I  distributed 
119.     One  was  rejected.     All  voted  but  one. 

Q.  How  do  you  know  they  all  voted? — A.  Because  I  was  determined;  I  bad 
heard  there  wasn't  justice  done  at  the  box  and  I  was  determined.  I  got  just  where 
I  could  see  every  one  voted  that  I  give  one  to.  I  kept  them  right  in  the  ranks  and 
saw  them  put  the  tickets  in  the  box.     (Rec,  p.  385.) 

A.  D.  Mclnnis,  witness  for  contestee,  was  brought  before  a  justice 
of  the  peace  at  8  o'clock  in  the  morning  with  his  deposition  written  out 
before  hand,  and  signed  before  counsel  for  contestant  could  get  there. 
(See  Rec,  p.  793.)    Mr.  Haynes  says  of  this : 

Q.  At  what  time  did  you  reach  Cockrum;  what  time  of  day? — A.  At  8.32  in  the 
morning. 

Q.  What  did  you  then  learn  in  regard  to  taking  the  testimony  there? — A.  When  I 
arrived  at  Cockrum  at  8.32  a.  m.  I  found  Mr  Boyce,  who  said  to  me  that  court  had 
been  opened  in  regular  form ;  they  had  taken  the  deposition  of  one  witness,  Esq.  A. 
D.  McGinnis,  and  the  court  was  in  fact  then  in  session,  although  Presiding  Justice 
Harrison  was  then  absent,  having  gone  home,  a  distance  of  about  two  miles.  He 
also  stated  to  me  that  court  had  been  opened  in  regular  form.  When  Justice  Harri- 
sou  returned  I  demanded  to  cross-examine  the  witness,  but  my  friend,  Mr.  Boyce, 
here,  was  equal  to  the  emergency,  and  made  the  record  to  show  a  very  plausible  ex- 
cuse why  I  could  not  be  permitted  to  do  so;  but  again,  as  at  Louisburg,  when  the 
court  returned,  Mr.  Boyce  moved  an  adjournment.  They  took  no  further  testimony 
that  day,  but  before  final  adjournment  Mr.  Boyce  prepared  a  certificate  for  the  court 
to  sign  and  send  up  with  the  record,  setting  forth  as  a  fact  that  the  testimony  given 
by  the  witness, McGinnis, had  been  written  in  the  presence  of  the  court;  agent  for 
contestant,  knowing  that  if  this  certificate  be  correct  the  court  must  have  been 
opened  that  morning  by  sunrise,  asked  of  the  court  an  explanation ;  the  court  re- 
plied in  substance  that  no  part  of  the  testimony,  neither  the  questions  nor  the  an- 
swers, had  been  written  in  his  presence  while  court  was  in  session,  or  in  his  presence.; 


388  CHALMERS    VS.   MORGAN. 

and  requested  Mr.  Boyce  to  correct  the  certificate,  which  I  presume  he  did ;  I  don't 
know. 

Q.  Is  it  not  the  fact  that  no  other  witnesses  were  examined  at  Cockrum? — A.  It  is. 
(Rec,  p.  973.)  \ 

Mclnnis  does  uot  swear  that  there  was  a  fair  election.    He  says : 

Int.  7.  State  whether  or  not  the  clerks  at  this  box  at  said  election  kept  tally-sheets, 
as  required  by  law,  and  complete  returns  were  made  out  and  signed  by  the  proper 
oflScers,  the  vote  tabulated,  and  the  result  declared.  If  so,  and  you  remember,  state  the 
vote  at  this  box  for  both  the  candidates  for  Congress,  Morgan  and  Chalmers,  ou  the 
day  of  said  election. — A.  7.  The  said  clerks  did  keep  such  tally-sheets  that  day.  The 
returns  of  election  had  been  made  out  and  signed  by  the  proper  officers  and  certified 
to  by  them.  The  count  had  been  completed  and  the  vote  tabulated,  the  result  pub- 
licly declared,  the  box  sealed  and  put  away  as  stated.  The  vote  for  Congressmen 
stood  as  follows,  to  wit:  J.  B.  Morgan  received  148  votes,  Jas.  R.  Cha.mers  received 
63  votes;  Morgan's  majority,  85.    (Rec,  p.  792.) 

The  box  having  been  stolen  the  presumptions  are  against  it.  The 
testimony  of  the  Eepublican  ticket  distributer  being  positive  that  he 
saw  118  votes  banded  in  for  Chalmers,  they  should  be  so  counted,  as 
this  proves  he  received  more  than  the  pretended  count  for  him.  No 
vote  being  proved  for  Morgan,  the  count  stands  : 


Chalmers. 

Morgan. 

Brought  forward 

6,291 
118 

12, 797 

Ingrama : 

Add         .                  ..                            ..                        

6,409 

12, 797 

OUVE  BRAXCH. 

The  evidences  of  fraud  at  this  box  are : 

(1)  The  Eepublican 8  had  no  inspector  of  election,  and  no  repre- 
sentative at  all  in  the  election.  (  See  testimony  of  Charles  M.  Haynie, 
Kec,  pp.  546,  547 ;  see  testimony  of  Henry  Wood,  Rec,  p.  551.) 

(2)  The  ballot-box  was  taken  off  to  dinner  at  12  o'clock  by  the 
peace  oflBcer,  and  was  kept  out  of  sight  of  the  inspectors  and  super- 
visors for  one  hour  and  a  half  by  H.  T.  Murry,  peace  officer.  (  See 
testimony  of  H.  T.  Murry,  Rec,  pp.  705,  76'».) 

(3)  The  witness,  Henry  Wood,  testified  that  it  has  been  the  custom  for 
ten  or  twelve  years  to  allow  one  colored  man,  out  of  every  four  offering, 
to  vote.  He  has  been  refused  the  privilege  of  voting  for  each  of  the 
three  or  four  Presidential  elections  prior  to  election  of  1888.  He  was 
told  each  time  he  was  marked  dead,  though  he  had  registered  for  each 
election,  and  had  lived  on  the  same  place  for  forty  years.  (See  testi- 
mony of  Henry  Wood,  Rec,  pp.  551,  552  ) 

Proof  of  votes. — Ed.  Brown  distributed  Republican  tickets,  and  saw 
1 19  men  to  whom  he  gave  said  tickets  go  to  the  polls  and  offer  to  vote 
them.  The  witness  knew  these  to  be  Republican  voters  at  that  box,  as 
they  had  been  for  years. 

Henry  Wood  testifies  that  he  knew  these  men  were  legal  voters, 
many  of  them,  and  he  had  lived  there  forty  years.  (See  testimony  of 
Edmund  Brown,  Rec.  pp.  549,  550 ;  see  testimony  of  Henry  Wood, 
Rec,  pp.  551,  552,  553.) 

This  renders  absurd  the  certified  vote  of  185  for  contestee  and  19  for 
contestant. 

These  frauds  have  been  continued  for  years.  (See  testimony  of 
Haynie,  Rec,  pp.  546,  547. 


CHALMERS   VS.    MORGAN.  389 

Deposition  of  Charles  M.  Haynie  (white),  a  witness  on  behalf  of  the 
contestant ;  being  first  duly  sworn,  deposed  as  follows: 

Direct  examination  by  Mr.  Pierson  : 

Q  Where  do  you  live  ? — A.  I  live  in  the  Olive  Branch  precinct,  in  De  Soto  County, 
Mississippi. 

Q.  How  long  have  you  lived  there  ? — A.  Something  over  20  years. 

Q.  Have  you  been  familiar  with  political  canvasses  and  with  elections  held  at  the 
Olive  Branch  precinct  during  that  time  ?— A.  I  have. 

Q.  I'll  ask  you  now  whether  in  1882,  and  since  that  time,  fair  elections  have  been 
held  or  not,  and  give  your  reason  for  your  answer  ? — A.  Since  1882  the  opposition  of 
the  Democratic  party  have  been  totally  without  representatic  n  at  the  polls.  Each 
year  since  that  time  a  very  large  per  cent,  of  the  Republican  voters  have  found  their 
names  erased  from  the  poll-book,  and  they've  been  marked,  others  moved,  dead  or 
gone,  and  the  rale  of  the  inspectors  has  invariably  been,  when  a  voter's  name  was  so 
erased  or  so  marked  they  declined  letting  him  vote  ;  hence  a  vgry  large  per  cent,  of 
the  opposition  to  the  Democratic  party  has  been  virtually  disfranchised. 

Q.  You  say  that  the  opposition  to  the  Democratic  party  has  not  been  represented 
at  the  polls.  What  do  you  mean  by  that  ? — A.  I  mean  that  they  have  neither  been  al- 
lowed an  inspector  or  clerk,  but  an  ignorant,  illiterate  colored  man  has  been  selected 
by  the  county  board  of  inspectors  to  represent  the  Republican  party,  and  at  the  last 
election  I'm  informed  the  man  so  selected  voted  the  Democratic  ticket — voted  for 
Cleveland  and  Judge  J.  M.  Morgan. 

Q.  Were  the  same  conditions  existing  as  to  the  manner  of  erasing  voters'  names 
from  the  poll-book  and  not  allowing  them  to  vote,  in  1888 — at  the  election  of  1888,  as 
you  have  described  in  your  first  answer? — A.  I  didn't  see  the  poll-book  at  the  last 
election,  hence,  of  my  own  knowledge,  can't  say.  I  was  present,  though,  when  quite 
a  number  of  voters,  or  rather,  you  may  put  that  applications  to  vote,  were  refused 
for  the  reason  that  their  names  were  no+,  found  on  the  poll-book. 

Q.  I'll  ask  you  whether  you  knew  the  men  who  applied  to  vote,  and  whether  you 
knew  where  they  had  voted  heretofore? — A.  Yes,  sir;  some  of  them  I  did. 

Q.  Where  were  they  voters? — A.  Olive  Branch;  men  that  had  lived  there  for  a 
number  of  years,  and  some  of  them  men  that  had  voted  in  my  presence  were  refused 
to  vote  at  this  last  election ;  just  how  many  I  couldn't  say. 

Q.  Was  there  any  organization  of  the  Republican  party  in  your  precinct  in  the  last 
canvass  ? — A.  There  was. 

Q.  Was  it  a  good  or  bad  organization  ? — A.  I  regarded  it  a  good  organization. 

Q.  Did  they  support  the  entire  Republican  ticket  ? — A.  So  far  as  I  know  they  did. 
I  didn't  hear  a  single  dissenting  voice  among  Republicans. 

Upon  this  proof  the  returns  should  be  set  aside  and  there  should  be 
added  to  Chalmers  100  and  taken  from  Morgan  185,  the  vote  returned 
for  him.    The  count  will  then  stand. 


Chalmers. 

Morgan. 

6,409 
100 

12,797 

Olive  Branch: 

Add 

Deduct  

185 

6,509 

12, 612 

COCKRUM,  LAKE  CORMORANT,   LEWISBURG,   AND  PLEASANT  HILL. 

At  these  four  boxes  no  specific  proof  was  taken.  But  at  these,  as  at 
every  other  precinct  in  this  county,  the  Republicans  were  denied  the 
inspectors  they  asked  for.  In  the  case  of  Threet  vs.  Clarke,  this  com- 
mittee held  the  law  to  be  as  follows : 

The  committee  is  of  the  opinion  that  where  the  course  is  systematically  pursued,  of 
appointing  on  the  election  boards  to  represent  the  minority  or  opposition  party,  per- 
sons not  indorsed  by  that  party,  and  as  to  whose  loyalty  to  the  party  whose  inter- 
ests they  are  expected  to  guard  there  is  a  question,  or  of  appointing  persons  who  are 
unable  to  read  and  write,  when  there  would  be  no  difiBcuIty  in  finding  men  well  quali- 
fied in  these  respects,  this  ought  of  itself  be  considered  evidence  of  conspiracy  to 
defraud  on  the  part  of  the  election  officers.  This  was  clearly  a  violation  of  the  law 
on  the  part  of  the  board. 


390  CHALMERS   VS.    MORGAN. 

This  law  declares  this  to  be  evidence  of  a  conspiracy  to  defraud,  but 
it  is  said  there  must  be  some  further  evidence  ot  fraud  to  set  aside  the 
returns.  We  have  this  much  evidence  from  the  history  of  the  district, 
it  IS  charged  in  the  notice  of  contest,  and  not  denied  in  the  answer, 
that  the  Democratic  vote  at  these  boxes  in  the  primary  election  in  1877 
was  only  371,  while  they  are  returued  538  for  contestee.  In  addition 
we  have  the  record  in  the  case  of  Buchanan  vs.  Manning,  which  shows 
that  Pleasant  Hill  box  was  rejected  for  fraud  both  by  the  majority  and 
minoritv  report  iu  that  case.  (See  Digest  Election  Cases.  1880-'82,  p. 
296.) 

In  the  case  of  McDuffie  vs.  Turpin  it  is  said:  "When  the  law  pro- 
vides that  each  of  two  political  parties  shall  have  representation  on  the 
election  board  of  inspectors,  it  is  a  provision  to  prevent  dishonest  par- 
tisans from  making  false  returns."  And  the  supreme  court  of  Missis- 
sippi said:  "Any  practice  which  may  be  thought  purposely  to  have 
been  resorted  to  for  influencing  the  result"  will  set  aside  the  returns. 
(Word  V8.  Sykes,  61  M.,  p.  667.) 

The  only  question,  then,  is,  was  this  practice  purposely  resorted  to 
at  these  precincts  for  influencing  the  result? 

If  the  same  thing  which  was  done  this  year  has  been  resorted  to  year 
after  year  for  many  years,  this  is  the  best  evidence  that  it  was  pur- 
posely done  to  affect  the  result  of  the  election. 

Austin  Bell  proves  that  the  Republicans  were  denied  the  inspectors 
they  asked  for  at  this  election.    (Kec,  p.  156.) 

That  this  refusal  has  been  continued  for  years  is  proved  by  the  fol- 
lowing testimony.    0.  M.  Haynie  says : 

Cross-examination  by  Mr.  Buchanax  : 

Q.  You  say  that  since  1882  the  opposition  has  been  without  representation  at  the 
polls.  Do  you  refer  to  the  Olive  Branch  precinct  alone  in  that  answer  ? — A.  In  that 
answer  I  referred  to  the  Olive  Branch  precinct  becanse  the  question  was  confined  to 
that  precinct. 

Q  Have  not  the  Republicans  always  been  allowed  an  inspector  or  judge  of  the 
election  by  the  election  commissioners?— A.  They  have  not,  buthave  invariably  been 
refused  the  man  that  they  requested  to  be  appointed  for  each  box,  and  some  illiterate 
man  appointed  instead  of  the  one  they  requested  should  be  appointed. 

Q.  My  question  was,  has  not  a  Republican  been  appointed  an  inspector  by  the 
board  ?  Have  the  board  not  complied  with  the  law  by  appointing  a  Republican  in- 
spector?— A.  I'm  inclined  to  think  not,  because  I've  reliable  information  that  the 
man  who  has  served  for  several  years  voted  for  Cleveland  and  Morgan  at  the  last 
election,  hence  I  don't  think  he  was  a  Republican. 

Q.  And  because  you  were  reliably  informed  that  one  inspector  at  the  Olive  Branch 
precinct  at  one  election  voted  the  Democratic  ticket,  or  for  the  Democratic  candidate 
for  Congress,  you  conclude  that  the  inspectors  of  election  in  De  Soto  County — I  mean 
the  commissioners  of  election  for  De  Soto  County — have  systematically  violated  their 
duty  and  refused  to  appoint  Republican  inspectors,  as  the  law  requires  that  they 
shall  do  ? — A.  Oh,  I  didn't  say  anything  of  that  kind.  That  question  leads  to  a  per- 
version of  what  I  said. 

Q.   Well,  I  want  to  understand  you. — A.  State  that  question  once  more. 

Q.  The  question  has  been  read  over  to  you  ;  now  what  have  you  to  say  to  it  ? — A.  It 
is  well  known  to  every  man  who  is  familiar  with  the  political  methods  adopted  by  the 
Democratic  party  not  only  for  the  precinctof  Olive  Branch,  but  for  every  precinct  in 
De  Soto  County,  that  it  has  been  deemed  best  for  the  perpetuation  of  the  Democratic 
party  that  no  man  of  any  intellect  should  be  permitted  to  represent  the  Republican 
party  at  any  box  in  the  county. 

Q.  You  say  it  is  well  known  as  you  have  stated ;  do  you  know  it  to  be  a  fact  ? — A. 
I  do. 

Q.  State  how  you  got  your  information  on  that  subject? — A.  From  personal  obser- 
vation. 

Q.  I  hen  state  from  what  facts  you  draw  that  personal  observation. — A.  Personal 
interviews  with  members  of  the  county  board  of  inspectors,  and  from  personal  inter- 
views with  prominent  members  of  the  Democratic  party  in  the  county,  and  from  a 
personal  examination  of  the  books. 


CHALMERS    VS.    MORGAN.  391 

Q.  State  what  members  of  the  board  of  commissioners  ever  told  you  that  the  policy 
of  the  party  was  as  you  have  stated;  give  the  time  and  place  of  such  iuterviews; 
also,  state  what  prominent  members  of  the  Democratic  party  ever  made  similar  state- 
ments  to  you,  and  give  the  time  and  place  of  such  interviews. — A.  That's  a  far-reach- 
ing question.  I  will  go  back  of  1882  in  answering  that  question.  About  1879  1  was 
a  candidate  for  chancery  clerk  on  the  Greenback  ticket  in  De  Soto  County,  and  waited 
upon  the  board — I  don't  remember  who  were  the  members  of  it ;  Day  was  one  of  them, 
though— and  asked  for  representation  at  each  box;  they  refused  to  do  it.  As  for  the 
special  time,  I  couldn't  give  that ;  I  saw  him  at  his  house;  I  saw  him  with  the  other — 
I  saw  him  with  the  other  members  of  the  board  at  the  court-house  in  Hernando. 
Again,  in  1881,  I  was  a  candidate  for  the  legislature  upon  the  same  ticket,  and  waited 
in  person  upon  each  of  the  members  of  the  board;  couldn't  specify  the  days;  they 
refused  again.  I  was  in  Hernando,  I  believe  in  1876,  I'm  not  sure,  and  had  a  talk 
w  ith  Mr.  Dodson,  and  insisted  that  Gen.  Chalmers  should  have  representation  at  the 
boxes,  and  his  reply  was :  "Oh,  you  have  representation  every  time,"  or  words  to 
that  effect,  "but  we'll  select  the  men  for  you."  Conversations  that  I've  had  with 
friends  outside  of  oflScials  as  regards  the  appointments,  either  as  to  time  or  place,  I 
don't  think  has  anything  to  do  with  this  case. 

Q.  So  you  base  your  conclusions  that  the  board  of  commissioners  have  systemat- 
ically violated  their  duty,  as  you  have  stated,  upon  the  above  interviews  which  you 
have,  as  stated,  with  members  of  that  board,  do  you  not? — A.  I  do  not  wholly  or  en- 
tirely. 

Q."  Well,  if  you  do  not  wholly  or  entirely  base  it  upon  that  ground  state  upon  what 
ground  you  do  base  it  ? — A.  I  base  it  upon  the  ground  that  since  1882,  so  far  as  I  have 
been  able  to  learn,  not  a  single  man  has  been  appointed  that  was  asked  for  by  the 
Republican  executive  committee  of  the  county. 

Q.  Have  you  presented  the  names  of  Republicans,  and  asked  their  appointment,  to 
the  board  yourself  ? — A.  I  have  not. 

Q.  Then  what  you  know  of  the  matter  of  the  action  of  the  board  is  not  of  your 
own  knowledge,  but  hearsay,  is  it  not  ? — A.  I  have  been  in  frequent  consultations 
with  the  executive  committee,  and  have  assisted  in  selecting  such  men — the  names ^ 
of  suitable  men  torepiesent  the  various  boxes  at  the  polling  places  in  the  county. 
Those  names  were  presented  by  some  one  selected  by  the  Republican  executive  eom- 
mittoe  to  the  county  board,  and  I  am  personally  aware  of  the  fact  that  none  of  those 
names  that  were  sent  up  were  ever  appointed — none  of  the  persons  appointed  whose 
names  were  sent  up.     (Rec,  pp.  547,548.) 

It  will  be  observed  that  the  Mr.  Dodsou  who  said  in  1882  "We  will 
select  the  men  for  you"  is  still  one  of  the  commissioners  of  election  of 
this  county,  and  his  name,  T.  A.  Dodson,  appears  signed  to  the  returns. 
(Rec,  p.  741.) 

This  same  T.  A.  Dodson  was  one  of  the  commissioners  in  1880,  as  the 
testimony  shows,  in  the  case  of  Buchanan  vs.  Manning,  when  inspectors 
were  asked  for  by  the  Eepublicaus  and  refused.  (See  House  Miscellan- 
eous, first  session  Forty  seventh  Congress,  vol.  4,  p.  25.) 

In  a  State  like  Mississippi,  where,  as  we  have  asserted  before,  the  com- 
missioners of  election  control  the  whole  machinery  of  election  in  a  county, 
the  county  should  be  treated  as  an  entirety,  and  if  conspiracy  and  fraud 
are  shown  in  the  action  of  the  commissioners  this  should  taint  the  elec- 
tion held  at  every  box  where  they  have  denied  fair  representation  to  the 
other  side.  It  should  at  least  change  the  burden  of  proof  and  compel 
the  party  relying  upon  the  returns  to  show  something  more  than  the 
mere  returns  themselves  to  sustain  their  validity.  That  the  commis- 
sioners of  election  of  De  Soto  County  denied  inspectors  of  their  choice 
to  the  Eepublicans  is  clearly  proved.  That  fraud  was  found  at  every 
box  that  could  be  examined  is  abundantly  shown.  That  one  of  the 
commissioners  of  election  destroyed  the  certified  list  of  voters  is  ad- 
mitted by  himself.  That  counsel  for  contestant  were  prevented  by 
intimidation  from  taking  testimony  at  Hernando  is  also  shown,  and 
this  should  be  considered  in  connection  with  the  want  of  testimony  as 
to  these  boxes.  All  these  reasons  taken  together  show  suflScient 
grounds  to  throw  out  these  boxes.  This  would  take  from  Chalmers 
312,  from  Morgan  540. 


odZ  CHALMERS  VS.  MORGAN. 

MARSHALL  COUNTY. 

The  notice  of  contest  says: 

MARSHALL  COUNTY. 

I  cb.arge  that  you  were  very  unpopular  in  the  district,  and  especially  so  in  Mar- 
shall Co.,  where  you  were  charged  Avitb  having  betrayed  Col.  Manning  in  his  con- 
test with  me  iu  1882,  aud  that  you  did  not  receive,  witbin  20  per  ceut.,  the  Denio- 
cratic  vote  of  this  county.  And  yet  when  Col.  Manning  received  only  1,296  votes  out 
of  a  total  vote  of  3,607,  you  pretended  to  bave  received  2,248  out  of  a  total  vote  of 
3,()60.  Aud  at  the  East  Holly  Springs  box,  where  Col.  Manning  lived  and  voted,  his 
majority  was  only  ;^7,  while  your  jiretended  majority  is  220.  And  at  this  box,  where 
the  two  candidates  for  sheriff  in  1887  could  poll  only  181  Democratic  votes,  you  pre- 
tend to  have  received  3.^)0  votes.  I  charge  that  all  manner  of  fraud  was  practiced  at 
every  box  in  this  county  except  Early  Grove,  and  there  your  friends  refused  to  bold 
an  election  because  I  would  have  a  majority  there  of  60  votes.  I  charge  that  in  this 
county  I  have  one  thousand  majority  over  you,  while  885  majority  was  counted  for 
you.  And  further  to  show  the  gross  fraud  of  your  pretended  vote,  I  compare  it  with 
the  vote  for  sheriff  between  McWilliaujs  and  Miller,  two  popular  Democrats,  who 
brought  out  the  full  Democratic  vote  of  the  county  in  1887  in  the  primary  election. 
Byhalia  and  Watson  then  voted  together,  but  now  are  two  boxes. 

Evidences  of  fraud. — Brief  of  contestant  says  : 

(1)  Mr.  A.  J.  Rylee,  a  witness  for  contestee,  testified  as  follows : 

Cross-inter.  4 — "Is  it  or  not  a  fact,  Mr.  Rylee,  that  you  have  upon  more  than  one 
occasion  stated  that  the  means  and  methods  adopted  and  carried  into  execution  by 
the  Democratic  party  of  this  county  in  the  holding  of  elections  was  unfair,  fraudu- 
lent and  unjust  as  against  the  parties  opposing  them,  whether  that  opposition  was 
Greenbackersor  ReimtJlicans  ?  "  Ans. — "  I  have,  privately  and  publicly,  so  far  as  the 
Greenback  party  is  concerned,  or  as  to  Republicans  when  acting  iu  concert  with 
Greenbackers." 

In  answer  to  cross-interrogatory  3  Mr.  Rylee  swears  that  in  so  far  as  his  knowledge 
goes  they  (the  Democrats)  use  all  the  means  at  their  disposal  for  the  success  of  their 
Ijarty.  The  witness  voted  for  Morgan,  the  contestee,  in  tlio  last  election  and  has  been 
prominent  in  Mai'shall  County  politics  for  the  last  ten  years.  (See  testimony  of  A.  J. 
Rylee,  Rec,  p.  870.) 

(2)  In  this  campaign  the  Democrats  were  apathetic  and  indifferent  aud  the  ne- 
groes were  more  alert  aud  active  and  better  organized  tban  for  years.  See  testimony 
of  John  S.  Burton,  record,  page  573;  see  circular  Democratic  executive  committee  of 
Marshall  County,  record,  page  673.  Besides,  Judge  Morgan  was  unpopular  in  the 
countj'  with  the  Democrats  because  he  did  not  heartily  support  Colonel  Manning  in 
his  canvass  in  1882  against  Chalmers.  (See  testimony  of  John  S.  Burton,  Rec,  pp. 
573,  4,  and  exhibit  B  to  his  deposition,  Rec,  p.  574.  See  testimony  of  C.  13.  Howry, 
Rec,  pp.  954,  interrogatories  1  and  2.) 

And  while  Morgan  was  unpopular  with  the  Democrats,  the  Republicans,  with  a  few 
exceptions,  were  hearty  in  their  support  of  Chalmers.  (See  testimony  of  John  S.  Bar- 
ton, Rec,  p.  573  (testimony  of  Geo.  M.  Buchanan,  Rec,  pp.  607-610). 

And  yet  Morgan  professes  to  have  received  2,248  votes  out  of  a  vote  of  3,660  in  the 
county,  when  Colonel  Manning  in  1882  could  get  but  1,296  votes  out  of  a  vote  of  3,607 
in  the  county,  aud  at  Colonel  Manning's  own  box  he,  in  1882,  received  only  37  ma- 
jority, and  Morgan  pretends  to  have  received  257  majority.  Morgan's  certified  vote 
is  rendered  still  more  ridiculous  by  the  fact  that  in  1887  a  primary  election  was  held 
in  the  county  between  two  very  popular  candidates  to  decide  which  should  be  the 
candidate  of  the  Democratic  party  for  sheriff.  There  was  a  very  exciting  canvass, 
and  the  full  Democratic  strength  was  voted.  The  two  candidates  only  received  1645 
votes  in  the  county.  Dr.  Burton  swears  that  it  is. impossible  for  Morgan  to  have  re- 
ceived, in  a  fair  election,  more  votes  than  the  two  candidates  for  sheriff  did.  This, 
of  itself,  shows  the  gross  frauds  in  this  county.  (See  testimony  of  John  S.  Burton, 
Rec,  pp.  582,  583.) 

The  Republicans  were  apprehensive  that  these  frauds  would  be  committed,  as  they 
had  been  often  before.  They  had  never  been  allowed  any  election  inspectors,  and 
had  only  the  United  States  supervisors  to  guard  their  rights,  and  if  they  watched  the 
man  who  took  the  tickets  from  the  box,  when  the  count  started,  the  clerks  wonld 
make  false  tallies;  if,  ou  the  other  hand,  he  watched  the  clerks,  the  man  taking 
tickets  out  of  the  box  would  change  or  misread  the  tickets.  But  the  Republicans  of 
this  county  did  not  intend  to  be  thus  cheated  out  of  their  rights.  Chalmers  had  been 
nominated  in  Holly  Spring,  and  the  Republicans  of  Marshall  had  imbibed  a  large 
share  of  the  enthusiasm  which  prevailed  in  the  nominating  convention.  They  deter- 
mined to  arrange  a  plan  by  which  they  could  ascertain  what  proportion  of  the  vote 
polled  at  the  election  was  Republican.  This  plan  is  best  explaiued  by  the  witness 
who  helped  arrange  it,  Capt.  George  M.  Buchanan.    He  says : 


CHALMERS   VS.   MORGAN.  393 

"A  short  time  before  the  election  our  central  committee  agreed  on  this  plan:  That 
in  order  to  ascertain  as  nearly  as  we  could  the  votes  cast  by  Republicans  at  the  elec- 
tion, that  we  would  have  one  or  more  intelligent  men  at  each  precinct  to  take  charge 
of  all  the  Republican  tickets  and  distribute  them  to  the  Republicans;  ac  the  same 
time  another  man  at  each  precinct,  to  take  down  the  list  of  the  names  of  the  voters 
as  the  tickets  were  given  to  them..  Furthermore,  we  agreed  and  did  furnish  from 
our  headquarters  at  Holly  Springs  a  memorandum  book  for  each  precinct,  or  suffi- 
cient memorandum  books  for  each  precinct,  to  take  down  these  names,  with  the  in- 
structions to  parties  distributing  tickets  not  to  do  any  electioneering  ;  to  go  to  some 
quiet  place  in  view  of  the  polls  where  they  could  write  unmolested ;  keep  an  accurate 
account,  and  to  give  no  man  a  ticket  without  ho  came  for  it  and  announced  his  inten- 
tion to  vt.te  it."     (See  testimony  of  George  M.  Buchanan,  Rec,  pp.  598-599.) 

It  will  appear  in  the  examination  in  detail  of  this  county  that  this  plan  was  carried 
out  substantially  at  each  place  about  which  testimony  was  taken.  It  will  also  appear 
that  there  was  no  particular  testimony  as  to  several  places,  and  the  reason  of  this  is 
also  given  iu  the  testimony. 

Contestant  made  arrangements  to  take  his  testimony  as  to  Marshall  County  before 
Mayor  Calhoun  at  Hollv  Springs,  and  gave  notice  to  ttiat  effect ;  and  but  for  the  in- 
terference of  contestee^s  counsel,  as  hereinafter  explained,  the  whole  vote  of  this 
county  would  have  been  thoroughly  and  clearly  proved. 

EAST  HOLLY  SPRINGS. 

Evidence  of  fraud. — (1)  The  whole  number  of  votes  certified  was 
444,  while  the  whole  number  of  votes  appearing  on  the  certified  list  of 
voters  was  only  443.  (See  vote  certified  for  East  llplly  Springs,  Kec, 
p.  743 ;  see  clerk's  certified  list  of  voters  for  this  box,  Eec,  pp.  1127, 
1128,  1129,  1130.) 

(2)  The  United  States  supervisor  saw  one  of  the  Democratic  inspec- 
tors switclnng  tickets,  those  taken  from  the  voters  being  run  up  the 
inspector's  sleeve  and  afterwards  falling  on  the  floor,  while  others  were 
put  in  the  ballot-box  in  the  place  of  those  dropped.  (See  testimony  of 
J.  J.  Sigmau,  Kec,  pp.  569-670.) 

Proof  of  vote.— J.  J.  Sigman,  the  United  States  supervisor,  proves 
that  he  knew  personally  201  persons  whose  names  appeared  on  the  list 
of  voters  at  this  box,  kept  by  him  on  the  day  of  election,  to  be  Eepub- 
licans,  and  believes  they  voted  a  Eepublican  ticket.  Some  persons 
whose  names  appeared  on  his  list  he  did  not  know,  and  at  the  time  of 
his  examination  could  not  tell  whether  they  were  white  or  colored.  (See 
testimony  of  J.  J.  Sigmau,  Rec,  pp.  569-570.) 

Sigman  also  files  his  list  of  voters,  numbering  447. 

United  States  supervisor  not  allowed  to  see  count  in  1880,  and  30  per- 
sons not  allowed  to  vote.     (See  Dig.  El.  cases,  1880-1882,  pp.  292-293.) 

As  will  be  seen  by  reference  to  the  primary  election  figures  above 
referred  to,  page  7  of  record,  the  Democratic  strength  at  this  box  is  only 
181,  and  Dr.  Burton  swears  that  it  was,  iu  his  opinion,  impossible  for 
Judge  Morgan  to  get  more  votes  at  this  box  than  did  these  two  candi- 
dates lor  sheriff.    (See  testimony  of  John  S.  Burton,  Eec,  pp.  582,  583.) 

The  fraud  being  proven,  the  number  of  votes  being  proven,  and  the 
Democratic  strength  being  shown,  we  submit  the  vote  as  cast  is  proved 
to  be  as  follows : 

On  this  proof  the  return  should  be  rejected.  Counting  for  Chalmers 
his  vote  as  proved,  and  none  being  proved  for  Morgan,  the  count  would 
then  stand  thus: 


Chalmers. 

Morgan. 

Brought  forward ...          

6,509 
128 

12,612 

East  ilolly  Springs : 

Add 

Deduct 

350 

6,637 

12,262 

394 


CHALMERS   VS.   MORGAK. 


The  explanation  of  the  20  illegally  rejected  votes  is  this :  Captain 
Buchanan  swears  that  43  men  who  received  Kepublican  tickets  from 
him  returned  them,  saying  they  had  not  been  allowed  to  vote  because 
their  names  were  scratched  ofl".  (See  testimony  of  Geo.  M.  Buchanan, 
Kec,  p.  012.) 

Dr.  Burton  proves  that  23  of  these  were  refused  their  vote  at  the  West 
Holly  Springs  box,  and  this  would  leave  20  to  be  refused  at  the  East 
Holly  Springs  box.  (See  testimony  of  John  S.  Burton,  Rec,  pp.  576, 577- 
1055  et  seq.) 

WEST  HOLLY  SPRINGS. 

Evidences  of  fraud. — Br.  John  S.  Burton  was  United  States  super- 
visor here,  and  when  the  count  started  had  the  tickets  handed  him — 
first  Republican  tickets  and  then  Democratic  ones — in  blocks  of  five, 
and  he  inspected  each  block,  and  then  handed  them  to  the  man  who 
called  them  out.  Dr.  Burton  checking  off  each  block  as  it  passed  through 
his  hands  and  as  it  was  called  out.  He  was  so  particular  that  once 
when  the  inspector  handed  five  tickets  as  Republican,  and  there  were 
two  Democratic  tickets  in  the  block,  and  another  time  when  a  block  of 
five  tickets  was  called  to  him  as  Republican,  and  on  looking  over  them 
he  found  one  Democratic  ticket,  Dr.  Burton  called  attention  to  the  facts 
and  told  the  Democrat  he  was  cheating  himself.  In  this  way  he  counted 
out  213  votes  for  Chalmers  and  138  for  Morgan,  Chalmers  running  5 
votes  ahead  of  his  ticket.  The  resiult  was  called  out  after  the  count 
was  completed,  as  Dr.  Burton  remembers,  as  only  35  majority  for  Chal- 
niers.  The  vote  was  certified,  168  for  Chalmers  and  183  for  Morgan. 
Dr.  Burton  protested  against  the  result  as  announced  after  the  count, 
but  was  answered  by  one  of  the  inspectors :  "  We  kept  tally  and  so  did 
you,  and  you  are  just  as  liable  to  make  mistakes  as  we  are.  (See  testi- 
mony of  John  S.  Burton,  Rec,  pp.  577,  578;  see  exhibit  to  his  deposi- 
tion, Rec,  pp.  1055-1059.) 

Dr.  Burton,  in  his  testimony  above  referred  to,  proves  that  there 
were  23  negroes  who  presented  themselves  at  his  box  to  vote  and  were 
refused.  They  had  been  registered  and  voting  here  from  three  to  seven 
years. 

Proof  of  vote. — The  above  evidence  of  fraud  proves  the  vote,  espe- 
cially as  there  is  no  attempt  by  contestee  to  meet  it.  The  vote  then 
should  stand  thus: 

Add  30  to  Chalmers  and  take  30  from  Morgan.  Add,  also,  to  Chalmers 
23  rejected  voters.  Burchard  says  he  knew  them  to  be  voters  there. 
Burton  says  they  also  claimed  at  the  time  to  be  registered  voters  there. 
Count  then  stands : 


Chalmers. 

Morgan. 

6,637 
30 

12, 262 

West  Holly  Springs: 

Add 

30 

6,6G7 

12,232 

RED  BANKS. 


Evidences  of  fraud.— {1)  The  Democrats  have  at  Red  Banks  a  set  of 
tricksters  and  ballot-box  thieves,  who  are  rpgularly  appointed  as  elec- 
tion ofificers  to  do  such  work  as  is  necessary  to  secure  Democratic  sue- 


CHALMERS   VS.   MORGAN.  395 

cess.  Tbey  liad  a  clerk  of  the  last  election,  one  W.  M.  Burtley,  who 
weut  to  Red  Banks  from  his  home  in  Memphis  to  help  hold  the  elec- 
tion.    (See  testimony  of  J.  W.  Moore,  Rec,  pp.  636,  637.) 

(2)  While  two  popular  Democrats  could  get  only  72  votes,  Judge 
Morgan  pretends  to  have  received  115  votes  in  the  last  election.  (See 
figures  of  primary  vote,  Rec,  p.  7,  and  certified  vote  for  Marshall 
County,  Rec,  p.  7i3.) 

And  we  again  assert  that  Democratic  primaries  bring  out  a  fuller 
Democratic  vote  than  do  the  general  elections,  for  the  reason  that  a 
primary  election  is  virtually  the  election.  This  is  history  and  the  pres- 
ent state  of  affairs  in  Mississippi,  as  the  record  shows. 

Proof  of  vote. — The  United  States  supervisor,  J.  W.  Moore,  the  largest 
planter  in  Marshall  County,  proves  that  he  saw  133  Republican  tickets 
voted  at  this  box  at  the  last  election.  Pie  also  proves  that  27  Repub- 
lican voters  were  not  allowed  to  vote  because  their  names  had  been 
scratched  off. 

He  knew  the  133  Republican  tickets  were  Republican  because,  (1) 
they  were  whiter  in  color  than  the  Democratic  tickets  and  had  a  fringe 
at  one  end,  and  (2)  because  he  knew  the  voters  were  Republicans. 

The  vote  as  shown  by  the  certified  returns  was :  for  Morgan,  115,  and 
for  Chalmers,  91.  The  above  proof  shows  that  the  vote  as  actually  cast 
was :  for  Chalmers,  133.  The  returns  being  vitiated  the  count  should 
be— 


Chalmers. 

Morgan. 

6,667 
41 

12,232 

KedBank: 

Add 

Deduct 

115 

6,708 

12, 117 

Evidences  of  fraud. — (1)  Cannon  Bass  and  Sam  Chew,  numbers  5L 
and  333  respectively  on  the  certified  list  of  voters  at  Byhalia,  were 
counted  as  having  voted,  when,  in  fact,  they  were  not  at  the  polls  that 
day,  and  Cannon  Bass  was  then  at  home  sick,  unable  to  get  to  the  polls, 
and  shortly  afterwards  died  of  his  illness.  (See  testimony  of  Thomas 
Guy,  Rec,  p.  622;  James  Ingram,  Rec,  p.  616,  and  certified  list  of 
voters  at  Byhalia,  Rec,  p.  1114.) 

(2)  Ben  Ingram  is  marked  on  the  clerk's  list  as  having  voted,  No. 
376,  when  he  does  not  live  in  that  precinct,  and  did  not  vote  at  ByhaHa 
that  day.     (See  testimony  of  James  Ingram,  Rec,  p.  616.) 

(3)  Pres.  Ingram's  name  appears  twice  on  the  clerk's  list  of  voters, 
Nos.  224  and  304.    (See  certified  list  of  voters,  supra.) 

(4)  The  Republican  inspector  could  not  read  and  write.  (See  testi- 
mony of  James  Ingram,  Rec,  p.  616.) 

(5)  The  certified  list  of  voters  shows  the  number  of  voters  to  have 
been  461.  (See  Ex.  B  to  James  Ingram's  testimony.  Record,  pp.  1114 
to  1117.) 

Proof  of  vote. — Two  witnesses  saw  240  Republican  tickets  given  to 
that  many  men  whom  they  knew  to  be  Republican  voters,  on  the  repre- 
sentation from  those  receiving  them  that  they  wanted  to  vote  them.  It 
is  proved  that  190  thus  given  tickets  voted  them,  as  shown  by  the  clerk's 
list  of  voters,  supra,  and  50  were  not  allowed  to  vote  because  their 
names  had  been  scratched  oft'  after  they  had  been  registered,  as  they 


396 


CHALMERS   VS.    MORGAN. 


claimed.  (See  testimony  of  James  Ingram,  liCC.  ]>■[).  015,  GIC,  and  Ex- 
hibits A  aud  B  to  his  testimony,  Rec,  pp.  1114-1117  j  see  testimony  of 
Thomas  Guy,  Rec,  p.  621'.) 

This  box  has  been  notorious  for  its  frauds  for  years.  In  the  Buchanan 
vs.  Manning  contest,  both  the  majority  and  minority  of  the  committee 
concurred  in  the  opinion  that  the  ballot-box  here  was  stufled,  and 
twenty-nine  voters  illegally  rejected.  (See  House  Mis(!ellaneous.  first 
session  Forty-seventh  Congress,  p.  97,  and  Dig.  El.  Cases,  188U-'ri2, 
pages  -96  and  322.) 

In  the  Chalmers  vs.  Manning  case,  the  Democratic  inspectors  had 
tiie  poll  books  and  refused  to  hold  the  election.  (See  testimony  R.  J. 
Lyle  in  record  of  Chalmers  against  Manning.) 

From  this  proof  the  returns  should  be  set  aside.  Add  35  to  Chal- 
mers and  take  302  trom  Morgan,  and  the  count  would  stand  thus: 


Chalmers. 

Alorgan. 

6,708 
35 

12, 117 

Bvlialia: 

Adil 

Deduct 

302 

6,743 

11,  M5 

Evidences  of  fraud. — (1)  There  were  only  104  votes  returned  as  cast, 
and  105  votes  were  counted  out  of  the  box.  (See  certified  vote  as  to 
Watson,  Rec,  743;  see  testimony  of  J.  A.  Stephens,  Rec,  559-560.) 

(2)  They  refused  to  allow  thirtj'  of  the  negroes  who  were  old  voters 
there  to  cast  their  ballots,  and  thus  deprived  them  and  the  contestant 
of  their  rights  under  the  law.  (See  testimony  of  J.  A.  Stephens,  Rec, 
559,  560. 

The  only  question  here  is  as  to  counting  the  rejected  votes  and  that 
will  be  reserved  for  future  consideration. 

WALL    HILL. 

The  proof  is  that  10j7  negroes  voted  the  Republican  ticket  with  Chal- 
mers's name  on  it  for  Congress,  and  the  man  issuing  the  tickets  knew 
the  men  who  received  them  to  be  Republicans.  There  were  17  men 
who  were  not  allowed  to  vote,  who  had  been  properly  registered.  (Tes- 
timony of  D.  L.  Woods,  Record,  623,  and  Exhibit  A  to  his  deposition, 
Rec,  1110,  1111.) 

The  above  evidence  of  Woods  shows  that  the  count  should  be  for 
contestant  actually  cast,  107. 

At  Wall  Hill,  Chalmers  was  counted  only  80  votes,  where  107  were 
cast  for  him,  and  17  illegally  rejected.  Similar  frauds  were  perpetrated 
here  in  18.^0.  (See  Buchanan  vs.  Manning,  Dig.  El.  Cases,  1880-'82, 
page  323.) 

The  returns  here  should  be  set  aside.  Add  to  Chalmers  27,  and  take 
from  Morgan  119,  and  the  count  will  theti  stand  thus : 


Clialmers. 

Morgan. 

6,743 
27 

11  815 

Wall  Hill: 

Add 

119 

C,  770            11,  «&0 

CHALMERS   VS.    MORGAN.  397 


CIIULAHOMA. 


Republican  tickets  were  distributed  here,  as  elsewhere  in  Marshall 
County,  to  those  who  announced  their  intention  of  voting  them.  In 
this  way  278  Republican  tickets  were  issued,  the  names  of  those  receiv- 
ing them  being  taken  down,  and  the  list  is  marked  Exhibit  A  to  the 
deposition  of  Wiley  Watson,  and  is  in  the  record,  1100.  This  list  was 
compared  with  the  certified  list  marked  Exhibit  B  to  Watson's  deposi- 
tion in  the  record,  page  1103,  and  the  names  of  248  of  those  to  whom 
Republican  tickets  had  been  issued,  as  before  stated,  were  found  on  the 
list  of  those  who  voted  at  Chulahoma,  as  certified  by  the  clerk  in  Ex- 
hibit B,  Record,  page  1103.  And  in  the  list,  which  is  a  part  of  Exhibit 
A,  above  referred  to,  we  find  the  names  of  30  registered  voters  who 
were  refused  a  vote.  According  to  the  certified  returns,  321  votes  were 
cast,  121  for  Morgan  and  200  for  Chalmers. 

This  is  another  large  Republican  box  where  frauds  have  been  con- 
stantly practiced.  In  the  Buchanan  vs.  Manning  contest,  the  United 
States  supervisor  was  ejected  from  the  room,  for  which  Bowen,  one  of 
the  inspectors,  was  convicted  in  the  United  States  court.  (See  Dig. 
El.  Cases,  1880-'82,  pages  292  and  315,  and  Case  No.  1771,  on  page  322 
of  same  volume.) 

In  1882,  in  the  Chalmers  vs.  Manning  contest,  the  box  was  stolen  and 
carried  off,  but  recaptured,  and  when  counted  had  252  majority  for 
Chalmers.  (See  records  of  supervisors,  House  Miscellaneous,  First 
Session,  Forty-eighth  Congress,  vol.  19,  doc.  48,  p.  4.) 

The  returns  here  should  be  rejected.  Add  48  to  Chalmers,  take  121 
from  Morgan,  and  the  count  then  stands  thus: 


! ■     ■                                                                                                                                                                                               '      '■■ 

Chalmers. 

Morgan. 

6,770 
48 

11  696 

CbulabOiiia: 

Add      , 

121 

6,818 

11, 575 

EARLY  GROVE. 

No  election  was  held  at  this  place  because  the  judges,  or  inspectors, 
who  were  appointed  to  hold  the  election  would  not  open  the  box  to 
receive  the  votes  under  the  pretense  that  no  justice  was  present  to 
qualify  them.  Dr.  Lyle  read  them  the  law  from  the  code  of  Mississippi, 
by  which  the  inspectors  are  authorized  to  administer  the  oath  to  one 
another,  but  they  refused  to  hold  the  election. 

There  were  100  voters — 70  negroes  and  30  whites — there  who  wanted 
to  cast  their  ballots  for  James  R.  Chalmers  for  Congress. 

It  has  been  the  habit  of  the  Democrats  at  Early  Grove  for  ten  years 
to  refuse  to  hold  an  election,  or  else  refuse  to  return  the  result  when 
the  chances  were  for  a  majority  against  the  Democrats.  All  this  is 
proved  by  testimony  of  Dr.  A.  M.  Lyle  (Rec,  p.  187),  and  ably  referred 
to  in  the  majority  report. 

law's  aiLL. 

The  certified  returns  give  94  for  Morgan  and  12  for  Chalmers.  This 
is  a  fraud ;  45  Republican  tickets  were  issued  to  men  on  the  representa- 
tion that  they  wished  to  vote  them.    Of  this  number  38  did  vote,  and 


398  CHALMERS   VS.    MOEGAN. 

the  others  were  refused,  as  a  goodly  number  of  the  Republicans  were 
at  every  precinct  in  this  el*^ction.  (See  deposition  of  Andrew  McGrhee, 
liec,  p.  OjJ7-'9,  and  Exhibit  A  to  his  deposition,  Rec,  p.  1053.) 

Similar  illegal  rejections  of  voters  at  this  box  were  proved  in  1880. 

The  returns  should  be  set  aside.  Add  24  to  Chalmers,  take  94  from 
Morgan,  and  the  count  will  then  stand  thus : 


Chalmers,  j    Morgan. 

6,818              11,575 
1 
24  !.. 

Law's  Hill: 

Add       

i                   94 

6,842  i            11,481 

WATERKOBD. 

We  have  here  the  same  discrepancy  that  we  find  at  almost  every 
box.  There  were  229  voters  and  230  votes.  (See  certified  list  of  vot- 
ers, pp.  1095-'6;  see  certified  returns  for  Marshall  County,  Rec,  p.  743.) 

There  were  136  Republican  tickets  distributed  to  Republican  voters, 
who  declared  they  wanted  to  vote  them,  with  instructions  if  they  did 
not  get  to  vote  to  return  the  tickets.  Only  28  tickets  were  returned, 
leaving  108  to  be  voted.  The  28  denied  the  right  to  vote  were  refused 
because  their  names  had  been  scratched  from  the  poll-books,  and  the 
contestant  should  be  allowed  the  benefit  of  their  votes.  (See  testimony 
of  B  C.  Walton,  Rec,  p.  620.)     . 

These  frauds  are  virtually  confessed  by  failure  of  contestee  to  make 
any  proof  as  to  the  vote  or  count  by  Moses  Pegues,  an  inspector  at  that 
box,  who  was  examined  as  a  witness  by  the  contestee.  (See  testimony 
of  Moses  Pegues,  Rec,  p.  860.) 

The  returns  should  be  set  aside  here.  Add  40  to  Chalmers  and  take 
162  from  Morgan,  and  the  count  will  then  stand  thus: 


Chalmers. 

Morgan. 

6,842 
40 

11, 481 

"Walei  ford : 

Add 

162 

6,882 

11, 310 

HUDSONVILLE. 

EHdences  of  fraud. — (1)  There  were  6  men  who  were  marked  as 
votiug,  none  of  whom  lived  in  this  precinct,  and  5  of  whom  were  resi- 
dents of  the  State  of  Tennessee,  and  none  of  whom  were  present.  (See 
testimony  of  Henry  Reason,  Rec,  p.  636.) 

(2)  And  13  Republican  voters  were  refused  a  vote,  John  Lewis,  the 
witness,  being  among  the  number,  though  they  had  been  properly  reg- 
istered. (See  testimony  of  Henry  Reason,  Rec,  p.  638,  and  testimony 
of  John  Lewis,  Rec,  p.  633,  and  Exhibit  A  to  his  deposition,  Rec,  p. 
3099-1100.) 

(3)  Wesley  Woodson,  a  colored  witness  for  contestee,  proved  that  he 
voted  a  national  Republican  ticket  with  Chalmers'  name  scratched  off. 
(See  testimony  of  Wesley  Woodson,  Rec,  p.  863.) 


CHALMERS   VS.    MORGAN.  399 

This  would  make  au  uneven  vote  at  this  place.  But  turning  to  the 
certified  return  of  Hudsonville  iu  the  record,  743,  we  find  the  Demo- 
cratic electors  are  given  142  votes  and  Morgan  is  given  142,  and  the 
Kepublican  electors  aud  Chalmers  each  received  77  votes.  And  this 
shows  that  the  vote  was  even  all  around,  if  it  is  to  i>rove  anything. 
But  looking  at  the  first  and  third  evidences  of  fraud,  we  see  that  the 
certified  returns  are  without  any  verity  whatever. 

The  certified  list  of  voters  was  by  accident  omitted  from  the  printed 
record,  but  the  original,  which  bears  the  seal  of  the  court,  and  is  clearly 
identified  by  comparing  the  numbers  on  it  with  the  numbers  on  the  list 
filed  by  the  witnesses,  John  Lewis  and  Henry  Keasons,  was  filed  with 
the  committee. 

An  examination  of  this  certified  list  shows  a  clear  case  of  fraud  here. 
Seven  men  who  the  proof  shows  were  not  in  the  State  on  the  day  of 
election,  and  had  not  been  for  years  in  the  vicinity  of  Hudsonville,  are 
returned  as  having  voted  there  at  this  election.  This  is  a  similar  fraud 
to  that  perpetrated  at  Byhalia,  and  the  returns  here  should  beset  aside. 

The  testimony  of  John  Lewis  and  Henry  Reasons  shows  that  91  voters 
received  Republican  tickets  from  them,  and  went  with  them  to  the 
polls.     A  list  of  their  names  is  filed,  as  exhibits  to  their  depositions. 

The  ceitified  list  of  voters  shows  that  they  ail  voted,  and  only  one, 
Wiley  Woodson,  who  is  called  as  a  witness  for  contestee,  says  he  did 
not  vote  for  Chalmers.  This  is  the  only  one  of  the  several  thousand 
names  given  by  the  ticket  distributers  as  having  voted  for  contestant 
that  was  called  to  say  he  did  not  so  vote.  But  Woodson  says  he  voted 
a  Eepublican  ticket  with  Chalmers's  name  scratched  off,  yet  no  such 
ticket  appears  in  the  count.  Again,  John  Lewis  proves  that  he  had 
been  duly  registered,  aud  ofiferet  to  vote  for  Chalmers,  but  was  rejected. 

This  supplies  the  place  of  Wiley  Woodson  and  shows  91  votes  for 
Chalmers  where  only  77  were  counted  for  him. 

The  returns  should,  be  set  aside.  Add  14  to  Chalmers  and  take  142 
from  Morgau,  and  the  count  will  then  stand  thus : 


Clialruers. 

Morgan. 

6,  882 
14 

11,  319 

Hudsonville  : 

Add 

Deduct 

142 

6,806 

11, 177 

PANOLA  COUNTY. 


Evidences  of  fraud. — It  was  impossible,  on  account  of  the  dilatory 
cross-examinations  by  contestee,  to  examine  all  the  voters  in  the 
district,  hence  contestant  examined  the  ticket  distributers  at  most  of  the 
boxes,  and  selected  Como  as  a  specimen  box,  where  the  voters  them- 
selves were  called  and  examined.  There  were  here  370  colored,  and  133 
white,  men  who  voted,  but  the  returns  gave  Morgan  306,  and  Chalmers 
207. 

Two  hundred  and  sixty- nine  voters  were  examined,  and  of  these  257 
swore  they  voted  for  Chalmers,  and  10  who  were  registered  and  offered 
to  vote  for  him  were  illegally  rejected. 


400 


CHALMERS    VS.    MORGAN. 


Two  only  said  they  voted  for  Morgan.  Contestant  was,  by  dilatory 
cross-examinations,  kept  for  thirty  days,  examining  269  witnesses  at 
this  box,  and  was  proceeding  to  examine  more  when  stopped  by  the  ob- 
jection of  time  expired. 

This  precinct  was  selected  because  the  fraud  was  so  skillfully  prac- 
ticed here  that  the  United  States  supervisor  was  unable  to  detect  it. 
The  examination  of  the  witnesses  clearly  exposed  the  fraud,  and  this 
may  be  taken  as  a  test  and  sample  of  what  was  done  all  over  the  dis- 
trict. 

The  returns  here  must  be  set  aside  and  the  vote  counted  as  proved, 
whicli  is  267  for  Chalmers  and  2  for  Morgan.  To  do  this,  adds  60  to 
Chalmers  and  takes  304  from  Morgan.  The  count  will  then  stand  thus : 


Chalmers. 

Morgan. 

Brought  forward 

6,896 
CO 

11  177 

Oomo : 

Add 

305 

6,956 

10, 872 

SPRING  PORT. 


Evidences  of  fraud. — (1)  The  Republican  inspector  could  not  read  and 
write.    (See  testimony  of  W.  S.  Lester,  Eec,  p.  442.) 

(2)  Manuel  Jones  saw  an  inspector  change  his  ticket  before  putting 
it  in  the  box,  and  saw  another  man's  ticket  changed  in  like  manner.  It 
was  charged  at  the  ballot-box  that  the  inspector  had  changed  five 
tickets,  and  the  inspector  did  not  deny  it.  (See  testimony  of  Manuel 
Jones,  Rec,  p.  444.) 

Proof  of  vote. — W.  S.  Lester  proved  there  were  93  names  of  negro 
voters  on  the  certified  list  of  voters  at  this  box  and  that  four  white 
men  voted  for  Chalmers.  There  were  13  negroes  who  were  denied  a 
vote,  who  claimed  they  had  been  registered  and  their  names  had  been 
scratched  off.    (See  testimony  of  W.  S.  Lester,  Rec,  pp.  442-'3-'4.) 

This  testimony  is  undisputed. 

Fraud  being  clearly  established  here,  the  returns  should  be  set  aside. 

Add  5  votes  to  Chalmers,  take  97  from  Morgan.  The  count  will  then 
stand  : 


Chalmers. 

Morgan. 

6,956 
5 

10,  872 

Spiiui;  I'ort: 

Add 

97 

6,9U1 

10,  775 

LONGTOWN. 

Evidences  of  fraud. — ( 1)  Two  witnesses,  voters  at  Longtown,  saw  their 
tickets  dropped  on  the  floor  and  other  tickets  put  in  the  box  in  their 
stead.  (See  testimony  of  Fret  Nolen,  Rec,  p.  430 ;  Silas  Gray,  Rec,  p. 
433.) 

(2)  The  Republican  inspector  could  not  read  and  write.  (See  testi- 
mony of  John  M.  Hewlett,  Rec,  pp.  539-40.) 


CHALMERS    VS.    MORGAN. 


401 


Proof  of  Tote. — The  total  certified  vote  is  211 — Morgan  157,Chalmers54. 

M.  G.  Littlejohu,  United  States  supervisor,  proves  he  saw  a  Demo- 
cratic inspector  receive  941iepub]icau  tickets,  but  could  not  tell  whether 
said  tickets  went  into  the  ballot-box  or  not,  he  being  behind  the  box, 
which  was  so  high  he  could  not  see  the  handling  of  the  tickets  after 
they  were  received.  He  is  sustained  by  John  M,  Hewlett.  (See  testi- 
mony of  M.  G.  Littlejohn,  Rec,  pp.  542-3 ;  John  M.  Hewlett,  Eec,  pp. 
535-6-7-8.) 

The  box  was  taken  from  the  presence  of  the  United  States  supervisor 
both  at  dinner  and  supper  time. 

The  returns  here  must  be  set  aside  because  clearly  vitiated  for  fraud. 
The  proofs  show  that  94  votes  were  cast  for  Chalmers,  while  only  54 
were  counted.  There  is  no  proof  of  any  vote  for  Morgan,  therefore  add 
40  to  Chalmers  and  take  157  from  Morgan,  the  count  will  then  stand 
thus : 


Chalmers. 

Morgan. 

6,961 
40 

10,  775 

LoDgtown : 

Add 

157 

^ 

7,001 

10,  018 

BATES  VILLE. 


Evidences  of  fraud. — (1)  A  Democratic  inspector,  T.  J.  Mabry,  con- 
fessed he  changed  the  votes  so  as  to  change  a  majority  of  200  for  Chal- 
mers into  a  majority  of  200  for  Morgan.  (See  testimony  of  H.  0.  Wor- 
sham,  Rec,  p.  472;  J.  A.  Thomas,  Eec,  p.  166  etseq.) 

(2)  The  United  States  supervisor  swears  that  he  was  so  placed  that 
he  could  not  see  exactly  what  the  fraud  was,  but  he  believed  it  was 
going  on.    (See  testimony  of  Lem.  B.  Lester,  Eec,  pp.  989-91.) 

(3)  It  is  proved  that  at  this  box  the  negroes  are  in  a  majority  of  two 
to  one,  and  there  are  30  white  people  who  voted  and  worked  for  Chal- 
mers.   (See  testimony  of  E.  M.  Kyle,  Eec,  p.  444.) 

The  returns  here  are  clearly  proved  to  have  been  fraudulent  and 
must  be  set  aside.  According  to  the  statement  of  the  Democratic  in- 
spector, Mabry,  there  were  200  majority  here  for  Chalmers. 

As  he  is  counted  only  132  there  should  be  added  to  him  Q^  and  taken 
from  Morgan  245. 

At  this  box  81  colored  voters  were  rejected  who  offered  to  vote  for 
Chalmers,  and  who,  when  rejected,  brought  their  tickets  to  contestant, 
who  was  present  at  this  box,  and  gave  him  their  names,  and  each  stated 
then  and  there  that  they  had  been  duly  registered  at  this  box.  (See 
list  of  names,  E.,  237.)    No  evidence  was  taken  to  disprove  this. 

These  81  should  also  be  counted  for  Chalmers.  Add  68  to  Chalmers 
and  take  245  from  Morgan  and  the  count  will  then  stand  thus  : 


Chalmers. 

Morgan. 

Forward 

7,001 
68 

10, 618 

Ratesville : 

Add ..    . 

Deduct 

245 

7,069 

10,  373 

H.  Mis.  137- 


-20 


402  CHALMERS  VS.  MORGAN. 

PLEASANT  MOUNT. 

Evideiwes  of  fraud. — (1)  The  liepublican  iuspector  could  neither  read 
nor  write.     (See  testimony  of  J.  F.  Buchanan,  Rec,  p.  291.) 

(2)  There  is  the  same  discrepancy  here  as  noticed  in  Marshall  County. 
The  returns,  page  744  of  the  record,  show  22G  votes  cast  for  candidates 
for  Congress,  while  the  certified  list  of  voters  contains  only  226  names 
(See  certified  list  of  voters,  Eec,  pp.  289-290.) 

Proof  of  vote. — J.  F.  Buchanan,  a  white  man  who  has  lived  in  the 
precinct  ever  since  1844,  and  who  has  been  a  candidate  for  oflSce  several 
times,  and  who  therefore  knows  nearly  all  the  whites  and  negroes  per- 
sonally in  the  precinct,  on  being  shown  the  certified  list  of  voters  at 
the  last  election,  proves  that  122  of  those  whose  names  appear  on  said 
list  are  negroes  and  Republicans.  He  says,  further,  two  white  men 
voted  for  Chalmers,  and  one  of  these,  J.  F.  Essary,  testified  he  so  voted. 
(See  testimony  of  J.  F.  Buchanan,  Eec,  pp.  290-5 ;  J.  F.  Essary,  Eec,  p. 
295.) 

Another  witness,  Lemuel  Nelson,  colored,  gives  six  additional  names 
of  negroes  who  voted  at  this  box  for  Chalmers,  these  names  not  being 
includetl  in  the  122  shown  by  Captain  Buchanan.  (See  testimony  of 
Lemuel  Nelson,  Eec,  p.  295.) 

The  proof  that  the  Eepublican  inspec^^or  could  neither  read  nor  write, 
and  his  signature  by  a  cross-mark  to  the  certified  list  of  voters,  when 
followed  by  the  testimonj'^  of  J.  F.  Buchanan  giving  the  politics  of  the 
voters  on  the  certified  list,  is  sufficient  to  set  aside  the  returns  at  this 
box. 

The  returns  being  set  aside  takes  126  from  Morgan ;  there  is  posi- 
tive proof  by  three  witnesses,  J.  F.  Buchanan,  J.  F.  Essary,  and  Lem- 
uel Nelson,  that  they  voted  for  Chalmers. 

The  testimony  of  Buchanan  and  of  Nelson  clearly  shows  that  all  the 
negroes  whose  names  appear  on  the  certified  list  of  voters  were  Eepub- 
lican except  one,  and  it  is  said  of  him  that  he  sometimes  votes  Eepub- 
lican and  sometimes  the  Democratic  ticket. 

From  this  proof  it  would  appear  that  thirty  votes  cast  for  Chalmers 
were  counted  for  Morgan,  and  this  not  by  relying  on  the  color  line,  but 
by  the  testimony  of  an  uncontradicted  witness,  who  had  lived  long  in 
this  precinct,  who  had  been  a  candidate  there  himself,  and  who  knew 
all  the  voters. 

From  this  testimony  the  box  should  either  be  thrown  out,  so  far  as 
the  returns  are  concerned,  and  three  votes  counted  for  Chalmers,  or 
thirty  votes  should  be  added  to  Chalmers  and  thirty  taken  from  Mor- 
gan, giving  one,  the  Eepublican,  and  the  other  the  Democratic  vote  as 
l)roved  by  Buchanan.  The  box  being  thown  out,  then  the  count  would 
stand  thus : 


Chalmers. 

Morgan. 

7,069 
97 

10, 373 

PleasantvilJe  thrown  out,  dedact  ...^  -  

126 

6,972 

10, 247 

TATE  COUNTY. 

» 

The  notice  of  contest  charges : 

TATE  COUNTV. 

This  is  the  county  where,  la  1882,  I  had  a  majority  of  306  votes  and  where  I  was 
robbed  of  my  whole  vote  by  the  celebrated  fraud  whereby  my  vote  was  certified  to  be 


CHALMERS    VS.    MORGAN.  403 

for  J.  R.  Chalmers  and  taken  from  me.  lu  this  county  there  was  a  primary  election 
for  the  nomination  of  a  Democratic  candidate  for  dist.  atty.,in  which  only  1,050 
Democratic  votes  were  cast  in  1887,  and  in  1H82  Col.  Manning  had  only  1,106,  and 
yet  you  pretend  to  have  received  about  1,500  majority.  The  Tate  County  Record, 
speaking  of  the  election  for  dist.  atty.,  says:  At  Senatobia,  Oglesby  received  145 
and  Slack  10  votes,  and  adds :  "Senatobia  is  Oglesby's  home  and  this  vote  is  a  hand- 
some compliment  to  his  popularity  and  ability."  And  yet  at  Oglesby's  home  you 
pretend  to  have  received  318  votes,  where  Oglesby  and  Slack  together  could  only  get 
155  Democratic  votes.  I  charge  that  this  box  was  stuft'ed  at  dinner  time  when  it  was 
taken  from  the  presence  of  the  U.  S.  supervisors. 

I  charge  that  in  this  county  the  inspectors  of  election  were  all  appointed  in  viola- 
tion of  law;  that  the  ballot-boxes  were  taken  from  the  presence  of  the  U.  S.  super- 
visors wherever  we  had  any;  that  there  was  wholesale  ballot-box  stnfiflng,  and 
especiallj'  I  charge  that  at  Coldwater.  where  I  had  170  votes  cast  for  me,  the  box  was 
taken  to  the  house  of  one  of  your  friends  and  when  counted  had  only  7  votes  for  me. 

I  charge  that  the  whole  election  in  this  county  was  a  fraud  and  that  the  vote  of 
_the  county  should  be  thrown  out. 

All  of  these  charges  are  fully  sustained  by  the  proof. 

Evidences  of  fraud. — The  election  commissioners  refused  to  appoint 
any  of  the  inspectors  of  election  recommended  by  Republicans  and  ap- 
pointed all  Democrats  in  every  box  but  three  in  the  county,  and  one  of 
these  could  not  read  or  write.  (See  testimony  of  John  S.  Jones,  Rec, 
17  and  518.) 

He  further  says  that  this  was  repeatedly  done  by  the  commissioners 
of  that  county,  and  in  this  he  is  sustained  by  the  record  of  Buchanan  vs. 
Manning,  where  the  same  thing  was  done  in  1880. 

E.  L.  Weens,  one  of  the  witnesses  for  contestee,  not  only  shows  that 
inspectors  were  asked  for  by  Colonel  Jones,  but  tells  why  they  were 
ot  appointed,  as  follows : 

Int.  7.  Did  you  hear  any  conversation  between  any  two  members  of  the  board  of 
flection  commissioners  for  Tate  County  at  or  about  the  time  they  were  appointing 
inspectors  for  the  election  of  1888  as  to  the  fitness  of  men  recommended  for  inspectors 
for  the  Republicans? — A.  7  I  heard  a  conversation  amongst  all  three  of  them  while 
Ihe  board  was  in  session.  Smith  was  not  satisfied  with  thn persons  John  S.  Jones,  chair- 
tan  of  the  district  Republican  committee,  had  made  to  him  personally ;  he  said  that 
)me  of  them  were  bad  men  and  he  could  not  appoint  them. — Record,  909. 

Smith  was  the  commissioner  appointed  by  Democrats  to  represent 
the  Republicans. 

The  brief  for  the  contestee  says : 

Smith  is  a  Republican  from  principle,  and  well  knowing  Jones  and  his  mercenary 
jolitics,  repudiated  and  spit  upon  his  suggestion  and  made  his  own  appointments. 

This  is  suflScient  to  show  that  he  was  a  mere  tool  of  the  Democrats 
it  two  of  ihree  boxes  where  there  were  Republican  inspectors  the  box 
ras  removed  from  the  presence  of  the  United  States  supervisors,  and 
the  majority  threw  out  these  two  boxes. 

TATLOR'S. 

At  Taylor's  the  ballots  were  never  counted,  the  box  having  been 
Jtolen  by  the  friends  of  the  contestee.  But  this  was  not  done  without 
protest.  John  C.  Clifton,  the  rjnited  States  supervisor,  made  as  gal- 
mt  a  fight  for  the  box  and  for  an  honest,  fair  election  as  any  man  ever 
lid.  He  followed  the  box  to  the  house  of  W.  S.  Bailey,  one  of  the 
")emocratic  inspectors,  and  was  there  told  by  said  Bailey  to  get  his  din- 
ger in  the  kitchen.  This  insult  brought  about  a  difBculty  some  time  after 
the  election,  in  which  Bailey  shot  and  wounded  Clifton,  who  has  since 
')een  confined  to  his  bed  from  said  wound.  (See  testimony  of  John  C. 
:)lifton,  pp.  189-191.) 
The  legal  majority  against  the  Democrats  at  this-  box,  when  fairly 


404 


CHALMERS    VS.    MOKGAN. 


countecl,  is  about  100.     (See  testimony  of  Joliu  S.  Jones,  Eec,  p.  518.) 
Clifton  gives  the  name  and  color  of  the  voters — 145  colored  and  30 
white. 

This  is  evidence  ot  gross  fraud  and,  added  to  the  refusal  of  the  com- 
missioners to  give  the  Republicans  any  inspectors  they  asked  for,  tends 
to  prove  a  conspiracy  to  defraud  and  a  determination  to  carry  this 
county  at  all  hazards,  and  hence  where  any  doubt  arises  as  to  the 
suffloiency  of  proof  of  fraud  at  any  one  box,  the  benefit  of  that  doubt 
should  be  given  against  the  iairness  of  the  count. 
The  count  here  should  be  Chalmers  145  and  Morgan  30. 


Chalmers. 

Morgan. 

Forward 

6,972 
145 

10,247 
30 

Taylor's,  add 

Total 

7,117 

10  277 

COLD  WATER. 

At  this  box  1C5  negroes  voted  open  tickets  for  Chalmers  and  called 
out  the  name  of  Chalmers  when  they  voted. 

In  his  speech,  made  shortly  before  the  election,  he  asked  that  all  who 
voted  for  him  should  call  out  his  name  when  they  voted  and  this  was 
done  for  that  reason. 

The  witness  Daiiey  also  voted  for  Chalmers,  The  box  was  taken  at 
dinner-time  to  the  house  of  a  Democrat  named  Bailey,  and  when 
counted  was  returned  275  for  Morgan  and  only  7  for  Chalmers.  Mr. 
Bailey,  to  whose  house  the  box  was  taken  for  dinner,  seems  to  have 
known  what  the  count  would  be  hei  e,  as  he  had  offered  to  bet  before 
the  election  that  Chalmers  would  not  get  over  7  votes  at  this  box. 

Dailey  voted  for  Chalmers  and  distributed  tickets  and  saw  165  voted 
for  him,  a  list  of  whose  names  he  gives.     (See  E.,  500-502.) 

This  box  should  be  rejected,  and,  counting  the  vote  as  proved,  we  add 
149  to  Chalmers  and  take  from  Morgan  275.  The  count  will  then  stand 
thus: 


Chalmers. 

Morgan. 

Forward 

7,117 
149 

10,277 

Cold  Water: 

Add 

Deduct 

275 

7,266 

10,002 

8ENATOBIA. 


The  ballot-box  here  was  removed  at  dinner  time  to  the  house  of  one 
Waite,  and  taken  from  the  presence  of  the  United  States  supervisor 
against  his  protest.     (See  testimony  of  G.  W.  Haynes,  R.,  525-7.) 

The  record  of  Buchanan  against  Manning  shows  that  the  same  thing 
was  done  here  in  1880,  and  that  the  box  was  then  taken  to  the  residence 
of  this  same  man  Waite.    (Dig.  El.  Cases  1880-'82,  p.  333.) 

At  Senatobia  the  contestant  received,  according  to  the  certified  re- 
turns, only  44  votes,  and  Morgan  318,  out  of  a  total  of  364  votes,  when 
it  is  proved  that  200  or  more  negroes  voted  there,  and  when  it  is  charged 


CHALMEKS    VS.    MORGAN.  405 

in  the  notice  of  contest  and  not  denied  in  the  answer  that,  in  1887  there 
was  a  primary  election  ior  the  nomination  of  a  Democratic  candidate 
for  district  attorney,  the  contest  being  between  two  candidates,  Oglesby 
and  Slack — Oglesby  receiving  at  Senatobia  145  votes  and  Slack  10; 
and  the  Tate  County  IJeeord,  a  Democratic  paper,  in  speaking  of  said 
election,  declared:  "Senatobia  is  Oglesby's  home,  and  this  vote  is  a 
handsome  compliment  to  his  popularity  and  ability." 

The  returns  here  must  be  rejected,  and,  there  being  no  proof  of  the 
vote,  none  can  be  counted.  This  takes  44  from  Chalmers  and  318  from 
Morgan,  and  the  count  will  thus  stand : 


Chalmers. 


Morgan. 


Forward 

Seoatobia  thrown  out,  dedact 


7,266 
44 


10, 002 
318 


7,222 


9,684 


SHERROD'S. 

At  this  box  the  Republican  inspector  was  a  negro,  who  could  not  read 
or  write.  The  Democratic  inspectors  were  seen  changing  the  tickets, 
and  the  box  was  removed  from  the  presence  of  the  United  States 
supervisor  Lafore  it  was  counted. 

Deposition  of  C.  A.  GRAYSON  (white),  a  witness  on  behalf  of  the  contestant,  be- 
ing first  duly  sworn,  deposed  as  follows  : 

Examination  by  General  Chalmers  : 

Q.  State  your  age,  your  occupation,  and  your  residence. — A.  I  am  45  years  old ; 
my  occupation  is  farmer  and  merchant ;  residence,  in  Tate  County. 

Q.  Were  you  at  any  box  at  the  election  ;  if  so,  state  what  box,  and  what  position, 
if  any,  you  held  there? — A.  I  was  at  Sherrod's  box,  Tate  County.  I  was  U.  S.  super- 
visor. 

Q.  Please  state  whether  the  box  was  taken  away  from  your  presence  without  your 
consent  before  it  was  counted. — A.  Yes,  sir ;  it  was  taken  away  at  night.  Carried 
about  one  and  one-half  miles  or  two  miles  from  the  voting  place  through  the  raiu, 
and  they  said  it  was  taken  to  the  Bowdre  place. 

Q.  Did  you  see  anything  to  indicate  a  stuffing  of  the  ballot-box  that  day  ?  If  so, 
please  state  it. — A.  I  saw  the  man  that  received  the  tickets  :^om  the  voters  fold  a 
ticket  and  put  it  under  his  legs — slipping  it  under  his  legs  to  one  of  the  clerks  or  in- 
spectors of  election.  They  bad  their  hands  together  under  there.  I  could  not  tell 
whether  they  changed  the  ticket  or  not.  They  discovered  that  I  saw  them,  and 
broaght  his  liand  back  with  a  ticket  in  his  hand  and  put  it  in  the  box.  They  seemed 
at  different  times  to  place  themselves  occasionally  in  position  between  myself  and 
the  man  that  received  the  tickets,  with  the  box  setting  just  before  him.  I  would 
move  around,  got  up  once  and  stood  up  so  that  I  could  see  that  the  votes  went  into 
the  box,  when  they  asked  me  why  I  stood  up ;  and  one  of  them  jerked  off  a  board — 
told  me  to  set  down;  there  was  plenty  of  light — so  I  coubl  see.  The  reason  I  stood 
up  was  for  the  want  of  light,  so  they  thought.  Also,  a  colored  witness  by  the  name 
of  Mat  White,  called  me  outside  the  ropes  and  told  me  that  he  saw  them  changing 
tickets  and  putting  different  ones  in  the  box. 

Q.  Is  there  anything  connected  with  the  election  at  that  place  that  seemed  to  you 
to  be  wrong? — A.  It  was  a  very  unpleasant  and  disorderly-held  election.  Drinking 
and  cursing  on  the  part  of  the  Democrats ;  a  great  many  unnecessary  questions  and 
insulting  questions  asked  to  the  niggers. 

Q.  Could  the  negro  a  ho  acted  as  supervisor  for  the  Republicans  there  that  day 
read  or  write  or  not  ? — A.  The  colored  man  that  was  appointed  inspector  didn't  come. 
They  appointed  another  nigger,  and  I  don't  think  he  could  either  read  or  write.  He 
appeared  to  be  a  very  ignorant  and  dull  nigger ;  but  as  for  his  reading  and  writing, 
I  am  not  certain. 

Q.  What  position  have  you  held  in  the  Republican  party  in  your  county  ? — A.  For 
6  or  8  years  I  was  chairman  for  the  county  committee — Republican. 

Q.  What  office  have  you  been  a  candidate  for  in  your  county  ? — A.  Sheriff. 

Q.  In  that  election  when  you  were  the  Republican  candidate  for  sheriff,  please 


406  CHALMERS   VS.   MORGAN. 

state  whether  any  effort  was  made  to  cheat  yoii  out  of  your  vote  at  the  Sberrod  box. 
State  all  about  it. — A.  Yes,  sir ;  I  was  a  candidate  for  sheriff.  At  1'2  o'clock  the 
Democrats  insisted  on  takiuj;  the  box  and  going  over  to  a  neighbor's  house  for  din- 
ner— about  half  a  mile.  Myself  and  my  friends — Keiniblicnus— objected  to  it.  They 
said  they  were  going,  and  we  could  go  with  them.  Conplo  of  my  friends  did  so,  one 
of  them  the  inspector.  When  they  went  in  to  dinner  my  friends  suggested  they  had. 
better  takethe  box  in  with  them.  Theother  party  said  no,  leave  it  in  the  room.  They 
left  it  in  the  room.  When  they  got  into  the  dining-room  one  of  my  friends  took  a 
seat  on  the  far  side  of  the  table,  and  just  as  he  sat  down  ho  looked  back  into  the 
room  he  had  just  came  out  of.  The  door  stood  open  about  10  inches.  He  saw  a 
young  lady  cross  to  the  other  side  of  the  room  with  the  ballot-box  in  her  hand.  He 
jumped  up  and  said  to  the  boys,  "There  is  something  wrong  in  yonder,"  and  run  in 
there  just  as  she  was  handing  the  box  out  of  the  window  to  some  of  their  Democrat 
friends.  He  turned  back  and  ran  out  of  the  uoor,  and  run  against  oue  that  had  the 
box  in  his  hands,  and  the  fellow  that  has  the  box  throws  it  down.  His  other  com- 
rade— Democrat — turns  his  coat  tail  over  his  head  and  runs  off.  My  friend  hollows 
to  him  and  says  to  him,  "  You  need  not  ruu;  1  know  you."  He  picked  the  box  up, 
carried  into  the  dinner  table:  kejjt  it  by  his  side;  brought  it  back  to  the  voting 
ground;  it  was  closely  watched  from  that  time  up  till  the  time  the  votes  were 
counted,  and  my  majority  when  counted  out  was  more  than  2  to  one  in  favor  of  me. 
(Rec,  pp.  187,  IHb.) 

From  this  it  is  manifest  that  the  returns  at  this  box  must  be  set 
aside. 
Proof  of  vote. — C.  A.  Graysou  says : 

Q.  Did  you  keep  a  list  of  the  voters  there  that  day  ;  and  if  so,  what  did  you  do 
with  it  ? — A.  I  did  sir ;  and  sent  the  list  to  W.  G.  Beauland,  chief  supervisor  of 
elections  at  Oxford,  Miss. 

Q.  Please  state  to  the  best  of  your  recollection  how  many  white  and  how  many 
colored  men  voted  there  that  day. — A.  My  recoUectiou  is  about  140  colored  and  40 
odd  whites. 

Q.  Is  that  or  not  about  the  full  strength  of  the  whole  vote  at  that  box? — A.  It  is 
of  those  that  vote  the  Democratic  ticket.  There  are  a  good  many  other  white  voters 
there,  but  are  not  Democrats;  don't  claim  to  be  Democrats.  I  kuow  a  unmber  of 
white  men  that  said  they  would  not  go  to  the  eletion  because  it  was  useless ;  because 
they  would  be  counted  out.  The  vote  would  not  be  counted  properly,  and  it  was  a 
waste  of  time  to  go  to  the  election. 

Q.  Do  you  know  of  any  colored  man  at  that  box  who  voted  the  Democratic  ticket  ? — 
A.  I  do  not. 

Q.  To  the  best  of  your  knowledge  and  belief,  and  from  what  you  saw  and  heard 
there  that  day,  please  state  what  ticket  was  voted  by  the  colored  men. — A.  One  nig- 
ger came  up  to  the  polls ;  he  is  classed  as  a  nigger,  but  I  think  he  is  about  7-8  white 
man  ;  he  lives  with  an  uncompromising  Democrat ;  handed  in  his  ticket  and  stated 
that  he  always  voted  the  Democratic  ticket.  When  I  said  just  before  that  I  knew 
of  no  nigger  that  voted  the  Democratic  ticket,  I  don't  regard  him  as  a  nigger  :  his 
name  is  Woodson.    I  think  all  the  niggers  voted  straight  Republican  ticket. 

Q.  Did  you,  as  U.  S.  supervisor,  object  to  the  box  being  taken  away  from  the  poll- 
ing place  iiefore  it  was  counted  ? — A.  I  did. 

Q.  What  is,  in  your  opinion,  the  majority  against  the  Democrats  at  Sherrod's  box 
at  a  full  vote  and  a  fair  count  ? — A.  At  least  one  hundred. 

Q.  Please  state  why  you  did  not  come  down  to  Sardis  last  week  to  be  examined. — 
A.  I  was  sick. 

Q.  Were  any  colored  voters  at  that  box  rejected  that  day  ?  If  so,  state  how  many, 
if  you  can. — A.  I  think  about  18  or  '20  ;  and  some  of  them  had  been  voting  there  for 
10  or  12  .years — in  at  that  box — and  had  never  moved  out;  one  or  two  on  my  own 
place  that  had  never  moved  out  of  the  beat. 

Q.  Upon  what  grounds  were  they  rejected  ? — A.  They  claimed  their  names  were 
not  on  the  books.     (Rec,  pp.  187-188.) 

No  witness  is  called  to  contradict  this  statement  in  any  respect,  except 
to  excuse  the  removal  of  the  box.  From  this  proof  it  is  evident  that 
this  was  a  large  Kepublican  box,  and  the  witness  says  that  the  negroes 
all  voted  a  straight  Republican  ticket,  and  that  there  was  a  maiority  of 
at  least  100  here  for  the  Eepublican  party. 

From  this  proof,  as  but  20  were  counted  for  Chalmers,  there  should 
be  added  80  votes  to  him,  and  166  taken  from  Morgan. 

Grayson  further  proves  that  18  voters  were  rejected  here,  some  of 
whom  he  knew  had  never  moved  out  of  the  beat,  two  of  them  living 


CHALMEES    VS.    MORGAN.  407 

Oil  his  own  place.  These  18  should  also  be  added  to  Ohalinei-s.  Bat 
as  this  was  an  ex  parte  afl&davit,  the  box  is  simply  thrown  out  on  the  ad- 
mission of  the  witness  for  contestee  that  it  was  taken  from  the  United 
States  supervisors. 

Take  from  Chalmers  20,  take  from  Morgan  166,  and  the  count  will 
then  stand  thus  : 


Morgan. 


Brought  forward. 
Sherwood : 

Deduct 


STRATHORSr. 

We  have  proof  from  both  a  Democrat  and  a  Eepublican  that  all  the 
inspectors  of  this  box  are  Democrats. 

J.  fl.  Wommack,  Democrat,  and  one  of  the  commissioners,  says: 

Int.  12.  Who  at  Strayhorn  ? — Ads.  12.  Pace  and  I  voted  for  T.  C.  Brownlee,  a  Re- 
publican, and  elected  him,  but  Smith  of  our  board  suggested  W.  A.  Nelson  ;  after- 
ward served  as  U.  S.  supervisor  at  that  box.  Afterward  Z.  P.  Smith  asked  us  to 
re-open  the  tetrayhorn  case,  and  he  would  suggest  another  name  ;  and  we  re-opened 
that  and  he  suggested  J.  N.  Gregory.  We,  Pace  and  I,  both  told  him  Gregory  was  a 
Democrat;  Smith  said  he  preferred  a  good  Democrat  to  a  sorry  Republican,  and  we 
then  elected  Gregory.     (Rec,  pp.  89D,  900.) 

This  clearly  shows  that  Smith,  the  so-called  Eepublican  commissioner 
in  this  county,  was  a  mere  tool  of  the  Democrats. 

Deposition  of  J.  A.  Williams  (wnite),  a  witness  on  behalf  of  the  contestant;  being 
first  duly  sworn,  deposed  as  follows : 

Examination  by  Gen.  Chalmers  : 

Q.  Please  state  your  name,  occupation,  and  residence. — A.  My  name  is  J.  A.  Will- 
iams; occupation,  farmer,  and  merchandise  a  little,  and  residence  in  StrayJiorn,  Miss. 

Q.  How  long  have  yon  resided  there,  Mr.  Williams  I — A.  Have  been  there  in  that 
settlement  for  about  20  years. 

Q.  Did  you  vote  at  the  Strayhorn  box  at  the  last  election  for  Congressman? — A.  I 
did. 

Q.  What  ticket  did  you  vote  ? — A.  Voted  the  Republican  ticket — what  is  called 
Harrison's  ticket. 

Q.  Do  you  know  whether  the  judges — inspectors  of  election — were  or  were  not  all 
Democrats? — A.  They  were  all  Democrats.  I  tried  to  get  one  to  say  he  wouldn't 
serve— tried  to  get  in  one  of  our  men  and  to  keep  him  out.     He  served  "himself. 

Q.  Mr.  Williams,  how  many  colored  men  voted  at  that  box  that  day,  to  the  best  of 
your  knowledge  and  belief? — A.  I  don't  know  ;  to  my  best  judgment  would  be  30  or 
40 ;  didn't  pay  much  attention.     There  were  good  many  there,  though. 

Q.  Do  you  know  of  your  own  knowledge  whether  any  white  men  at  Strayhorn  were 
supporters  of  mine  or  not  ? — A.  Yes,  sir. 

Q.  About  how  many  of  them,  Mr.  Williams?— A.  Well,  sir,  I  couldn't  say  how 
many  there  was ;  several  said  that  they  did  vote.  I  don't  know  whether  they  did  or 
not. 

(Excepted  to  as  hearsay  testimony.) 

Q.  Were  you  an  inspector  at  that  box  four  years  ago,  Mr.  Williams? — A.  Yes,  sir ; 
I  was. 

Q.  What  was  my  vote  there  then? — A.  92  votes;  that  is  my  recollection  now.  I 
think  it  was  92.     (Rec,  pp.  515, 516.) 

Q.  You  say  that  four  years  ago  when  you  were  inspector  that  Gen.  Chalmers  re- 
ceived 94  votes  at  that  box;  please  repeat  your  statement. — A.  I  said  92  was  my 
recollection. 

Q.  I  stand  corrected ;  you  said  92.  Was  Gen.  Chalmers  at  that  time  a  Republi- 
can ? — A.  Well,  ho  was  on  that  list;  I  couldu't  tell  you  what  he  was ;  I  don't  know 
what  he  was;  he  was  on  that  ticket;  voted  for  him;  at  least  on  th«  Republican 
ticket  what  we  voted  for ;  he  was  on  our  ticket. 


408  CHALMERS    VS.    MORGAN. 

Q.  Who  do  you  mean  by  "  we?  "—A.  "  We  "  the  RepuWican  party,  that  is  "  we." 

Q.  WLenever  there  is  a  split  among  the  Democrats  don't  you  vote  for  the  wedge?— 
A.  Yos,  sir, 

Q.  Wasn't  Gen.  Chalmers  ihe  wedge  then? — A.  Yes,  sir,  you  can  call  him  that  if 
yon  want  1o. 

Q  Did  yon  hear  him  make  a  speech  in  that  canvass  ? — A.  I  couldn't  say,  sir,  posi- 
tively or  not ;  might  and  might  not. 

Q.  Did  you  ever  hear  Gen.  Chalmers  in  a  public  speech  declare  himself  to  be  a  Re- 
publican ? — A.  I  don't  know  that  I  ever  did,  sir. 

Q  At  the  time,  then,  that  Gen.  Chalmers  received  92  votes  he  was  running  as  an 
independent,  was  he  ? — A.  I  never  heani  it  that  way. 

Q.  Was  he  not  running  as  an  independent  Democrat-Greenback  ? — A.  I  didn't  know  ; 
he  was  on  my  ticket,  th^  ticket  I  vote,  and  I  voted  for  him. 

Q.  You  are  successful,  then,  as  an  election  manager  for  the  man  you  vote  for  t — A. 
Well,  I  don't  know  ;  call  it  successful  or  what  not. 

Q.  I  will  ask  you  to  state  whether  or  not  the  man  in  opposition  to  the  Democratic 
ticket  ever  got  as  much  as  92  votes  at  Strayhorn  in  any  election  when  you  were  not 
the  manager!— A.  Yes,  sir,  I  think  they  have. 

Q.  Name  the  time  and  place,  and  the  man  that  got  that  many  votes  in  opposition 
to  the  Democratic  ticket  at  Strayhorn  when  somebody  else  held  the  election. — A.  I 
think  the  highest  vote  over  mine  polled  there  over  the  Republican  party  was  98  votes, 
sir.     (Rec,  p.  517.) 

This  witness  proves  that  the  Kepublican  vote  here,  at  a  fair  election, 
is  92;  that  thirty  or  forty  negroes  votetl  here  that  day  and  that  some 
whites  besides  himself  voted  for  Chalmers,  and  yet  he  was  counted  only 
16  votes. 

The  contestee  attempted  to  overcome  this  proof  by  showing  that 
some  of  the  negroes  voted  for  him  and  introduced  two  witnesses  for 
this  purpose,  one  a  white  man,  John  McNeely,  and  the  other  a  negro, 
Jerry  Hill,  and  they  both  agree  in  their  statement  that  only  two  negroes 
so  voted  at  that  election.    (See  E.  923-924  and  928.) 

This  testimony  strengthens  that  of  J.  A.  Williams,  and  shows  that 
the  Republican  vote  here  was  not  fairly  counted. 

The  appointment  of  all  Democrats  as  inspectors  was  itself  unlawful 
and  in  direct  violation  of  the  statute.  And  when  this  is  followed  by 
proof  that  the  vote,  as  counted,  is  far  below  the  usual  Republican  vote 
at  that  box,  when  fairly  counted,  this  is  suflQcieut  to  set  aside  the  re- 
turns. 

Take  from  Chalmers  16  and  from  Morgan  223  and  the  vote  would  then 
stand : 


Chalmers. 

Morgan. 

Brought  forward 

7,202 
16 

9,518 

Strayhorn  t 

223 

7,180 

9,293 

All  the  other  boxes  in  this  county  should  be  rejected  on  account  of 
the  refusal  of  the  Democrats  to  allow  the  Republican  inspectors  asked 
for,  and  the  appointment  of  Democrats,  and  on  account  of  the  fraud 
proved.  In  this  county,  two  weeks  before  the  election,  the  Tate  County 
Record  said : 

What  did  the  drum-beat  mean  ten  or  twelve  years  ago  ?  It  meant  this—  negro  su- 
premacy over  whites,  and  it  means  the  same  thing  now,  under  the  leadership  ot  Jones 
and  Chalmers.  Democrats  of  Tate,  can  you  stand  it?  If  not,  up  and  at  them  in  your 
oltl-time  style  and  with  your  old-time  vigor.  The  danger  is  imminent.  They  are  alert 
and  active.     How  are  you  ?     We  repeat,  the  danger  of  losing  the  county  is  great. 

And  yet  Chalmers  was  returned  but  435  votes  in  the  county  and  Mor- 
gan 1,490  majority.    The  proper  thing  to  do  would  be  to  throw  the  county 


CHALMERS    VS.    MORGAN.  409 

out  as  to  the  returns  and  count  only  the  vote  proved  at  Coldwater 
and  Taylor. 

LA  FAYETTE   COUNTY. 

The  notice  of  contest  says : 

LA  FAYETTE  COUNTY. 

This  is  the  county  where  the  Democratic  cannon  was  in  1880  placed  in  twenty  steps 
of  the  court-house  and  tired  across  the  crowd  of  negro  voters  until  they  were  dis- 
persed, and  where  in  1882  L.  S.  Dillard  illegally  held  back  the  count  for  which  he  wss 
indicted  in  the  U.  S.  court  and  plead  guilty  and  was  subsequently  rewarded  by  Mr. 
Cleveland  with  the  post-ofifice  at  Oxford.  In  this  county  800  voters  who  desired  to 
vote  the  Republican  ticket  for  me  were  disfranchised  by  erasure  from  the  poll-books  ; 
400  were  erased  on  the  poll-books  at  the  two  boxes  in  Oxford  alone,  and  the  U.  S. 
supervisor,  who  was  present,  was  marked  dead  and  not  allowed  to  vote.  I  charge  that 
this  was  done  after  the  poll-books  were  delivered  to  messengers  to  be  carried  to  the 
voting  places,  and  that  some,  if  not  all,  these  messengers  were  selected  by  the  aforesaid 
postmaster,  L.  S.  Dillard,  who  in  1882  sent  the  celebrated  telegram,  "  What  is  the 
latest  ?    We  are  holding  the  count." 

These  charges  are  fully  sustained  by  the  proof.  The  history  of  this 
county  shows  it  to  be  thoroughly  Republican.  It  was  the  home  of  L. 
Q.  C.  Lamar,  and  yet  he  was  defeated  here  for  Congress  by  48  votes  in 
1872,  by  a  Republican.  Chalmers  carried  the  county  over  Manning  by 
36G  in  i882,  and  it  was  admitted,  by  the  Democratic  district  committee- 
man and  others,  one  week  before  the  election,  that  Chalmers  would 
carry  the  county  by  400  majority,  unless  something  was  done  to  prevent 
it.  Something  was  done  and  what  that  something  was  is  clearly  shown 
in  the  majority  report.  It  was  the  disfranchisement  of  the  Republican 
voters  by  the  erasure  of  their  names  from  the  poll-books.  They  were 
marked  dead,  a  more  merciful  killing  of  Republican  voters  than  is 
sometimes  practiced  in  this  State.  That  this  was  the  result  of  a  delib- 
erate conspiracy,  and  that  the  contestee  was  in  the  county  when  it  was 
planned  is  fully  proved. 

Faust,  a  white  witness  and  a  Republican,  testifies  as  follows  :  (Rec, 
pp.  593-594). 

Q.  Did  you  hear  any  conversation  from  aleading  Democrat  of  Oxford  a  short  time 
before  the  election  as  to  the  j)robable  result  in  that  county  ? — A.  Yes,  sir. 

Q.  Plea«e  state  as  near  as  you  can  when  that  was,  who  was  present,  and  what  was 
said? — A.  Friday  iveek  before  the  election  I  tvas  in  Oxford,  having  business  with  W. 
V.  Sullivan.  In  presence  with  Mr.  W.  E.  Avant,  in  conversation  and  probably  about 
our  business — I  had  but  little  with  him — he  asked  me  how  the  election  was  goin<i  lor 
Congress.  I  stated  that  I  supposed  that  Morgan  would  be  elected.  He  just  said, 
"You  don't  know  anything  about  it.  Chalmers  will  beat  Morgan  400  votes  in  La 
Fa>ette  County  if  there  isn't  something  done  to  prevent.  I  have  just  been  around, 
and  will  have  a  meeting  in  my  office  at  8  o'clock  to-night  to  prevent  it,  if  we  can." 
That  was  all  that  was  said.  This  conversation  occurred  between  us  after  we  left  the 
office  and  was  standing  between  the  south  portico  of  the  court-house  and  the  east 
steps.     Then  we  branched  out,  Avant  and  him  in  conversation,  to  other  matters. 

He  is  sustained  by  W.  E.  Avent,  a  white  witness  and  Democrat,  as 
follows  (Rec,  p.  956) : 

Q.  1.  State  your  name,  age,  occupation,  and  voting  place. — W.E.  Avent;  62  years 
old  10th  of  next  June  ;  farmer;  La  Fayette  Springs,  Miss. 

Q.  2.  State  whether  or  not  you  remember  a  conversation  which  took  place  last 
fall  in  regard  to  the  election  a  few  weeks  previous  to  the  election  between  Mr.  W. 
V.  Sullivan,  Foust,  yourself.  If  so,  state  as  nearly  as  you  can  what  that  conversa- 
tion was  and  where  the  conversation  took  place? — A.  2.  I  don't  remember  any  one 
being  present  but  W.  V.  Sullivan,  Foust,  and  myself.  Wo  had  a  conversation  with 
jpegard  to  the  coming  election.  The  inquiry  was  made  by  Mr.  Sullivan  how  the  elec- 
tion was  going  in  my  part  of  the  county.  I  told  him  I  thought  that  there  was  the 
least  excitement,  it  being  Presidential  election,  I  ever  saw.  I  went  on  to  state  that 
I  was  afraid  Mr.  Morgan  was  not  going  to  get  along  as  well  as  I  would  like  for  bim 


410  CHALMERS   VS.    MORGAN. 

to  do,  aud  we  all,  I  believe,  agreed  about  tbe  matter  ;  tbe  thing  was  gettingon  pretty- 
slowly.  I  believe  this  was  about  the  chat  we  had  among  us.  This  conversation, 
I  thinli,  took  place  in  Sullivan's  office.  I  am  not  certain  ;  1  6up1)08e  we  were  together 
about  one  hour  that  day. 

Q.  3.  State  whether  or  not  Mr.  Sullivan  made  any  further  statement  with  regard 
to  the  matter? — A.  3.  Mr.  Sullivan  stated  that  he  had  been  around,  or  was  going 
around  ;  was  going  to  have  a  meeting  that  iright  to  fix  up  for  the  election.  I  don't 
know  whether  they  had  it  or  not. 

Q.  4.  Was  there  any  request  made  in  regard  to  you  remaining  ? — A.  4.  Mr.  Sulli- 
van asked  me  to  remain,  but  I  did  not  stay.  I  don't  know  whether  they  had  it  that 
night  or  whether  they  had  it  at  all  or  not. 

W  bo  W.  V.  Sullivan  was  is  thus  proved  by  McKenzie,  chairman  of 
the  Democratic  Congressional  committee.    (Eec.,  p.  655.) 

Cross-int.  13.  Who  is  the  member  of  the  Dem.  ex.  com.  in  this  Cong.  dist.  from  La 
Fayette  County  ? — Aus.  W.  V.  Sullivan. 

That  this  conspiracy  was  to  erase  the  names  of  Republican  voters 
from  the  poll- books  is  thus  proved. 

Beanland  says  (Rec,  p.  594) : 

Q.  Did  you  hear  anything  from  any  leading  Democrats  of  the  county  as  to  the 
probable  result  of  the  election  ?  And  if  so  state  who  it  was,  when  it  was,  and  what 
he  said. — A.  On  or  about  the  2r)th  of  Oct.  /  heard  Webb  Harris  aay  the  niqgeis  icas  or- 
ganizing all  over  the  country  and  icere  all  being  registered  to  a  man,  and  they,  the  Dem- 
ocrats, tcere  to  meet  on  that  night  to  organize  and  get  on  some  i>?aw  to  beat  Chalmers. 
Something  had  to  be  done.  On  or  about  the  27th  he  told  me  they  had  organized,  and 
were  to  meet  that  night  to  set  the  ball  rolling;  that  if  the  niggers  were  organized 
ihey  had  the  books  and  the  count.  I  conversed  with  him  more  or  less  e^ch  day  up  to 
Saturday ;  then  he  told  me  or  I  heard  him  say,  they  might  all  be  registered,  but  they 
could  come  up  dead  when  it  come  to  vote,  which  proved  to  be  true.  On  Sat.  night  be- 
fore the  election,  in  the  post-office  at  Oxford,  while  waiting  for  my  mail,  /  heard  Lem 
Dillard  say  the  niggers  were  better  organized  than  they  had  ever  been,  but  there  tcould  be  a 
good  many  of  them  who  would  come  up  dead,  which  proved  true.  The  general  talk  among 
the  Democrats  that  some  strenuous  effort  would  have  to  be  used  to  beat  Chalmers. 

That  all  this  was  done  under  the  direction  of  L.  S.  Dillard,  who  was 
commissioner  of  election  in  1882,  and  who  fraudulently  held  back  the 
count  for  which  he  was  indicted  and  plead  guilty  in  the  United 
States  court,  is  shown  in  the  majority  report.  That  the  contestee  was 
in  the  county  when  this  was  done  is  shown  as  follows  : 

D.  McKenzie,  witness  for  contestee,  on  cross-examination  said,  (Rec, 
p.  651) : 

Int.  2.  What  position  did  you  occupy  in  the  organization  of  the  Democratic  party 
in  the  election  in  Nov.,  18gW,  and  previous  thereto  f — Ana.  I  was  chairman  of  the 
Dem.  ex.  com.  of  De  Soto  Co.,  (and  also  of  the  2nd  Cong.  dist.  of  Miss.  The  Dist. 
Com.) 

Cross-int.  15.  What  information  did  you  have  as  to  the  Democratic  and  Republican 
organization  in  La  Fayette  County? — Ans.  My  information  was  less  definite  as  to  the 
organization  of  that  county  than  any  other  in  the  district.  The  Dem.  party,  my  in- 
formatiou  is,  was  not  organized  until  late,  but  a  pretty  good  organization  was  re- 
ported to  me  finally.  The  last  week  or  ten  days  of  the  campaign  Judge  Morgan 
spent  in  that  county.  As  chairman  of  the  dis.  com.  I  specially  requested  him  to  give 
tliat  county  his  attention,  and  he  reported  it  in  pretty  good  fix. 

That  pretty  good  fix  was  the  disfranchisement  of  the  Republican 
voters,  and  it  is  fair  to  presume  that  the  contestee  fixed  it,  because  this 
same  great  outrage  was  perpetrated  at  his  home  in  De  Soto  County  in 
1880.  Johnson,  election  commissioner  of  that  county  was  convicted 
in  the  United  States  court  and  fined  $500  for  fraudulently  erasing  the 
names  of  voters  from  the  registration  and  poll  books.  (See  Digest 
Election  Cases  1880  to  1882,  Buchanan  v.  Manning,  p.  313.)  In  this 
connection  attention  is  called  to  the  following  testimony: 

By  Hon.  C.  D.  Howry,  United  States  district  attorney  under  Cleve- 
land (Rec,  p.  954): 


CHALMEES   VS.   MORGAN.  411 

Personally  came  Chas.  B.  Howrj',  a  wituess  for  J.  R.  Cbalmers,  contestant,  vs.  J. 
B.  Morgan,  contostoe,  who,  after  being  sworn,  testifies  as  follows: 

Q.  1.  Please  state  name,  ase,  place  of  residence,  and  occupation. — A.  1.  Chas.  B. 
Howry;  over  21  years;  live  in  Oxford;  a  lawyer. 

Q.  2.  Do  you  remember  to  have  been  present  in  the  N.  E.  part  of  this  county  when 
Mr.  Morgan  delivered  his  speech  in  this  canvass  with  Mr.  Manning  for  the  Democratic 
appointment  at  the  primary,  in  wliich  speech  he  referred  to  the  methods  of  carrying 
elections,  using  some  such  language  as  the  following,  that  he  was  in  favor  of  success 
in  the  Democratic  canvass,  even  i  hough  he  had  to  resort  to  counting  out  the  colored 
vote  in  order  to  accomplish  it  ?    Please  state  in  your  own  words. 

(Objected  to  as  irrelevant  to  the  issue  and  as  not  having  occurred  in  any  canvass 
with  the  two  parties,  and  if  occurred  at  all  occurred  years  ago.) 

A.  2.  In  1882  Judge  Morgan  was  a  candidate  for  the  Democratic  nomination  to  Con- 
gress against  Col.  Manning,  and  at  Boyd's  Springs  in  Lafayette  County  the  judge  made 
a  speech  which  I  heard.  In  that  speech  ho  had  something  to  say  about  white  govern- 
ment and  the  necessity  for  maintaining  it.  This  was  followed  by  a  passing  remark 
that  he  was  just  as  much  in  favor  of  taking  advantage  of  the  negro  as  anybody  else,  or  of 
cheating  the  negroes,  if  necessary,  and  this  last  remark  was  used  in  connection  with 
what  he  had  to  say  about  white  government.  I  understood  him  to  use  the  tvord  cheat- 
ing, but  can  not  say  positively  that  w^as  the  precise  word.  It  was  either  that  or  that 
he  was  in  favor  of  taking  advantage  of  the  negro,  if  necessary.     That  is  all. 

And  by  the  following  testimony  (Eec,  pp.  572,  673,  574) : 

Q.  Do  you  know  of  any  other  evidence  of  unpopularity  of  Judge  Morgan  in  Mar- 
shall County  ? — A.  Yes,  sir ;  when  he  was  running  there  2  years  ago  last  fall  he 
made  a  speech  at  Byhalia,  in  which  he  touk  grounds  that  the  election  should  be  car- 
ried, as  it  always  had  been,  to  buckle  on  a  6-shooter,  as  he  had  done,  and  meet  the 
Republican  voters  before  they  got  to  the  polls,  and  drive  them  back,  or  knock  them 
down,  and  tivke  their  tickets  away  from  them.  He  and  a  man  named  Hight  got  into 
an  argument  about  it  and  Mr.  Hight  and  Judge  Morgan  published  cards. 

Q.  Have  yon  got  a  copy  of  Hight's  card  ? — A.  I  think  I  have,  sir. 

Q.  Will  you  please  file  it  and  mark  it  as  Exhibit  B  to  your  deposition  T 

Witness  does  the  same. 

Exhibit  B. — John  S.  Burton, 

[Cor.  Memphis  Avalanche.J 

MR.   E.   M.   HIGHT,  THE   AUTHOR  OP  THE  BYHALIA   REPORT,    COMES  BACK  AT  JUDGE 

MORGAN. 

Byhalia,  Miss.,  September  2. 
Editor  Avalanche : 

While  greatly  astonished  to  find  in  your  Tuesday's  paper  a  positive  denial  from 
Judge  J.  B.  Morgan  of  the  statements  attributed  to  him  in  my  Sunday's  correspdtid- 
ence  to  your  paper,  I  am,  nevertheless,  as  he  has  done  so,  not  surprised  to  see  him 
resort  to  that  spirit  of  bulldozing  which  characterized  his  most  inflammatory  speech 
in  this  place  on  the  23d  of  August. 

In  justice  to  myself,  I  desire  to  not  only  reiterate  my  every  statement  relative  to 
his  speech,  bnt  I  propose  to  give  his  utterances  more  fully  and  forcibly  than  I  did  in 
my  former  letter. 

My  report  was  not  given  from  a  Republican  stand-point,  nor  from  the  stand-point  of 
any  other  character  of  partisan,  but  simply  from  the  holy  stand-point  of  truthfulness. 

In  the  course  of  Judge  Morgan's  speech  on  the  23d  ult.  he  referred  to  the  negroes 
goiu||  to  the  polls  in  squads  of  ten  and  the  means  by  which  they  should  be  dispersed, 
and  instanced  a  time  when  he,  with  fifty  other  men,  had  buckled  on  navy  sixes  and 
with  hickory  clubs  in  their  hands  had  met  the  negroes  at  the  polls  and  insisted  that 
they  vote  as  they  directed,  and  on  their  refusal  to  do  so  the  negroes  were  knocked 
down  and  dispersed;  that  these  means  had  proved  effective  at  that  time  and  would 
prove  as  effective  now.  In  describing  the  way  in  which  the  negroes  were  knocked 
down  Judge  Morgan  exhibited  himself  and  used  hia  arms  to  illustrate  the  manner  in 
which  the  clubs  were  used  and  how  the  negroes  were  felled  to  the  earth,  and  made 
use  of  some  such  expressions  as  "  Take  that,  G — d  d — u  you ! "  when  they  knocked  one 
down.  Several  times  did  Judge  Morgan  ask  pardon  of  his  audience  for  the  use  of  his 
profanity  in  their  presence.  From  this  part  of  Judge  Morgan's  speech  I  took  occasion 
to  say  in  the  Avalanche  that  he,  Judge  Morgan,  "alluded  in  strong  and  forcible  term 
to  the  means  to  be  used  in  downing  the  negro  voter.  That  he  had  found  six  shooter  the 
most  effective  means  of  driving  the  negroes  from  the  polls  where  they  refused  to  vote  as  di- 
rected, and  believed  that  it  would  now  prove  as  effective  as  in  by-gone  days." 


412  CHALMERS   VS.    MORGAN. 

In  thus  making  this  repoit  I  was  certainly  justified  by  bis  language,  if  be  uttered 
it  at  all.  Now  the  question  come  up,  Did  Judge  Morgan  say  anytbing  of  this  kind 
in  h'8  speech  ?    In  his  own  language  he  says  not,  in  tho  following  strong  statement : 

"I  desire  to  say  to  your  readers  that  this  entire  btatemeut,  with  regard  to  the 
'  means  to  be  used  in  downing  the  negro,'  is  a  deliberate  falsehood  in  the  whole  and 
all  parts,  in  its  woids  and  in  the  ideas  intended  to  bo  conveyed.  It  is  the  uiachina- 
tion  of  a  vicious  brain,  whose  wish  was  father  to  the  thought.  I  never  even  so  much 
as  alluded  to  '  the  means  of  downing  the  negro  voter.'  1  did  not  state  that  '  I  had 
found  the  six-shooter  the  most  eftective  means  of  driving  the  negroes  from  the  polls 
when  they  refused  to  vote  as  directed,  and  believed  that  it  would  now  prove  effective 
as  in  by-gone  days.'  I  not  only  did  not  give  utterance  to  such  words  at  Byhalia,  but 
never  entertained  such  views  in  all  the  days  of  my  life.  Nor  did  I  utter  at  Byhalia 
any  words  from  whicb  any  honest  man  could  draw  such  conclusions  as  your  corre- 
spondent presented  to  your  readers." 

The  above  are  the  words  in  which  Judge  Morgan  denies  my  report  of  his  speech  at 
Byhalia,  which  places  the  whole  matter  in  one  of  the  two  lights:  That  Judge  Morgan 
never  referred  to  the  use  of  navy  sixes  as  a  u)eaus  of  driving  negroes  from  the  polls 
in  any  manner,  and  that  Marcellus  willfully  lied  in  his  report  of  the  speech  to  the 
Avaljinche;  or,  that  Judge  Morgan  did  make  use  of  the  statements  attributed  to  him 
and  Judge  Morgan  has  willfully  lied  in  his  positive  denial. 

To  show  that  Marcellus  has  not  lied,  I  desire  to  say  that  I  am  willing  to  refer  the 
matter  to  the  people  who  heard  the  speech  at  Byhalia — to  the  people  among  whom  I 
live — for  vindication  or  condemnation ;  to  the  people  who  enjoy  a  reputation  for 
honesty  and  integrity,  to  say  who  has  told  the  falsehood.  And  as  further  proof  of 
the  truthfulness  of  my  statements,  I  append  statements  from  a  number  of  the  best 
men  in  this  community — men  whose  integrity  has  never  been  impeached.  Here  are 
the  statements : 

Byhalia,  Miss.,  September  2. 
Having  listened  to  the  speech  delivered  by  Judge  J.  B.  Morgan  in  Byhalia,  Miss., 
on  the  night  of  August  23,  1R86,  we,  the  undersigned  citizens,  hereby  state  that  in  the 
said,  in  substance,  that  on  former  occasions  he,  with  about  fifty  other  men,  hail  buck- 
led on  navy  sixes,  and,  with  hickory  clubs  in  their  hands,  had  met  the  negroes  at  the 
polls  and  insisted  that  they  vote  as  they  directed,  and  on  their  refusal  to  do  so  they 
were  knocked  down  and  thus  dispersed ;  that  these  means  proved  effective  at  that 
time,  and  would  prove  as  effective  now. 

J.  C.  Moore,  Jr. 

R.  J.  Lyles. 

N.  F.  Stea't:n8. 

Ed.  R.  Reynolds. 

G.  W.  Owens. 

Byhalia,  Miss.,  September  3. 
Having  heard  the  speech  of  Judge  J.  B.  Morgan  on  August  23,  1886,  and  read  the 
report  of    same   in  the  Avalance  by  Marcellus,  we  pronounce  the  said  report  as  not 
only  correct  in  stibatance,  but  mild  in  the  mxinner  in  which  it  was  written  compared  with  the 
utterances  of  Judge  Morgan. 

Charles  Stanback. 
Press  Stanback. 
N.  F.  Stevens. 
I 

Here  are  the  positive  statements  of  a  number  of  the  most  respectable  and  trust- 
worthy citizens  of  this  community,  who  directly  and  most  emphatically  controvert 
the  statements  of  the  Democratic  Congressman  from  tbesecond  district  of  Mississippi. 
These  men  will  not  misrepresent  a  matter,  and  no  man  dare  charge  them  with  such 
conduct.  In  addition  to  this  proof  I  will  rest  my  statements  to  the  honor,  integrity, 
and  honesty  of  all  others  who  heard  the  speech  and  have  read  Judge  Morgan's 
denial. 

If  this  testimony  is  not  rank  perjury  the  contestee  believes  in  these 
Mississippi  methods,  and  he  was  in  this  county  and  on  the  ground 
when  carried  out. 

The  contestee  had  more  motive  than  any  other  man  to  have  this 
fraud  committed,  and  it  is  proved  that  he  was  in  the  county  where  it 
was  done,  was  sent  there  to  have  it  fixed  and  reported  it  in  a  pretty 
good  fix.  Jn  cases  of  circumstantial  evidence  where  a  man  has  a 
motive  to  commit  an  oflfense  and  the  opportunity  to  commit  it,  and  an 


CHALMERS   VS.   MORGAN.  413 

ofifense  is  committed,  this  furnishes  strong  circumstantial  evidence  of 
his  guilt. 

Evidence  as  to  erasure  of  names  from  poll-books. 

Eecord,  p.  959,  contestee's  witness  Carothers ; 

Taylor's  precinct — "about  400  names  stricken  from  book  at  E.  E. 
election.  No  complaint  of  election"  except  that  both  Eepubticans  and 
Democratic  voters'  names  had  been  erased  from  lists. 

Eecord,  p.  631,  witness  "  Alexander,"  one  of  the  (reluctant)  Demo- 
cratic county  commissioners: 

Q.  What  ia  your  name? — A.  J.  P.  Alexander. 

Q.  Where  do  you  live! — A.  At  Oxford,  La  Fayette  County,  Miss. 

Q.  What  office  do  you  hold  in  La  Fayette  County,  Miss.,  if  any? — A.  I  am  jailer 
there;  I  am  one  of  the  commissioners  of  election. 

Q.  What  are  your  duties  as  said  commissioner  of  election? — A.  It  is  to  inspect  the 
books. 

Q.  Do  you  or  do  you  not  have  charge  of  the  registration  books  and  make  them 
up  ? — A.  Yes,  sir. 

Q.  Did  you  see  the  registration  books  of  La  Fayette  County,  Miss.,  before  the  Nov. 
election  in  1888?— A.  Yes,  sir. 

Q.  In  what  condition  were  those  books  as  to  their  correctness  when  you  last  saw 
them  ? — A.  I  taken  them  to  be  correct,  as  far  as  I  knew. 

Q.  At  what  time  before  the  election  did  you  last  see  those  books? — A.  Well,  sir,  I 
saw  Kee  Curamings  setting  them  out  the  Thursday  before  the  election  and  Tuesday, 
and  some  I  saw  on  Saturday  before  the  election. 

Q.  Did  you  see  those  books  after  the  election  ? — A.  Yes,  sir. 

Q.  Will  you  state  what  was  their  condition  in  comparison  before  the  election  you 
saw  them  again  ? — A.  They  were  badly  marked  up. 

(Counsel  for  contestee  objects  to  this  testimony,  and  asks  that  the  same  be  excluded, 
because  the  books  about  which  he  is  testifying  are  not  produced.) 

Q.  What  do  you  mean  by  the  books  being  badly  scratched  up  ? — A.  There  are  some 
of  the  names  that  had  been  on  there  were  marked  off. 

Q.  Did  you  see  any  names  that  had  been  on  those  books  and  that  by  right  should 
be  on  there  which  had  been  marked  off? — A.   Yes^  sir. 

Cross-examination  by  Mr.  Boyce  : 

Q.  How  long  have  you  lived  in  La  Fayette  County  ? — A.  About  forty  years. 

Q.  When 'were  you  made  one  of  the  board  of  commissioners  of  election  for  that 
county  ? — A.  This  last  fall ;  I  don't  remember  the  time,  before  the  election  though. 

Q.  What,  are  your  politics? — A.  I  am  a  Democrat. 

Q.  When  did  you  last  supervise  the  registration  books  to  find  out  that  names  of 
voters  which  should  have  appeared  on  that  book  were  marked  off? — A.  It  was  after 
the  election,  after  they  were  returned  to  us. 

Q.  Did  you  examine  carefully  the  name  of  every  voter  that  appeared  upon  the  reg- 
istration books  for  La  Fayette  County  ? — A.  No,  sir ;  not  after  the  election.  There 
were  a  great  many  had  been  erased  that  I  knew  there,  and  the  day  of  the  election 
they  couldn't  vote,  and  it  was  just  those  that  I  examined  to  see  if  they  were  there. 

This  witness-  is  speaking  of  the  books  generally,  including  the  whole 
county.  He  was  the  county  jailor,  had  lived  in  the  county  forty  years, 
and  says,  "  There  were  a  great  many  that  I  knew  there  [in  the  county] 
could  not  vote  on  day  of  election  j  it  was  just  those  I  examined  to  see 
if  tbey  were  there." 

Word  says  (iiec,  p.  555) : 

Q.  I  don't  exactly  understand  whether  you  have  stated  as  near  as  you  are  able  the 
number  of  colored  men  who  applied  to  vote  at  the  South  Oxford  box  whose  names 
had  been  erased?— A.  Well,  if  you  will  give  me  a  pencil  I  can  make  the  calculation 
and  state  exactly.     They  were  179  that  applied  to  vote. and  was  rejected. 

Q.  In  my  question  I  meant  to  ask  you  whether  the  meu  had  been  refused  because 
of  their  names  being  scratched  off?— A.  Yes,  sir;  that  was  the  cause. 

Q.  Did  you  know  any  considerable  number  of  the  voters? — A.  I  did,  sir;  know 
the  biggest  part  of  them. 

Q.  Were  they  Rep.  or  Dem.  voters? — A.  They  were  Rep.  voters,  sir. 

Q.  How  long  had  they  been  voting  there  ? — A.  Some  of  them  were  old  men,  some 
of  them  middle-aged,  some  young  men,  and  it  was  their  first  attempt  to  vote. 

H.  Eep.  2503 6 


414  CHALMERS   VS.   MORGAN. 

Q.  Where  had  they  lived  ? — A.  They  had  lived  there.  Some  had  jast  become  of 
age,  and  some  had  been  voting  there  ever  since  they  had  been  free. 

Q.  Did  you  examine  any  other  poll-book  in  the  county  of  La  Fayette  except  the 
South  Oxford  book  ? — A.  Yes,  sir ;  I  did. 

Q.  What  one  ? — A.  I  examined — made  a  partial  examination  of  the  Abbeville  book. 

Q.  When  f — A.  On  Saturday  before  the  election  on  Tuesday. 

Q.  When  was  the  next  time  you  saw  that  book  and  examined  it  I — A.  In  the  grand- 
jury  room. 

Q.  State  the  difference  between  the  condition  of  the  book,  so  far  as  yon  examined 
it,  of  the  Saturday  before  the  election  in  Nov.  and  when  you  examined  it  after  the 
election  before  the  grand  jury. — A.  Well,  I  examined  the  book  from  the  letter  A  down 
to  the  letter  K.  My  intention  was  to  ascertain  how  many  names  had  been  erased  on 
that  poll-book  from  A  to  Z.  I  was  interrupted  by  a  voter  coming  in  and  claiming 
that  he  had  voted  for  a  number  of  years  at  Abbeville,  and  the  last  time  that  he  had 
applied  to  vote  there  they  said  that  his  name  was  erased,  and  I  only  examined  down 
to  the  letter  K.     I  found  200  names  had  been  erased  down  to  that  letter. 

Q.  That  was  on  the  Saturday  before  the  election  ? — A.  Yes,  sir  ;  and  after  the  elec- 
tion, when  I  examined  that  book  before  the  Federal  grand  jury,  I  found  223  names 
had  been  erased  down  to  the  letter  K. 

Q.  Isn't  it  the  habit  there  to  mark  dead,  removed,  &c.? — A.  Yes,  sir. 

Q.  What  did  they  have  on  your  name  ? — A.  Well,  I  didn't  see  it  dead  there,  but 
they  said,  L.  N.  Word,  dead. 

Q.  Who  said  that? — A.  It  was  one  of  the  clerks  or  judges  xhat  had  the  poll-book. 

Q.  What  became  of  that  poll-book  in  which  you  had  the  names  of  those  who  had 
applied  to  vote  and  were  refused  f — A.  We  had  no  dinner  that  day  and  supper  was 
brought  in  and  we  were  all  eager  to  get  something  to  eat.  We  were  hungry  aud  I 
tried  to  get  my  book  in  my  pocket.  It  was  too  large ;  I  couldn't  get  it  there.  I  turned 
around  aud  layed  it  on  the  mantel  board  and  proceeded  to  help  them  set  the  table. 
I  suppose  I  was  doing  that  about  5  or  10  minutes,  and  thought  of  my  book  and  looked 
around  and  it  was  gone. 

Q.  Have  you  ever  seen  that  book  since  T — A.  No,  sir;  I  have  not. 

This  day  personally  appeared  P.  L.  Redwine,  a  witness  for  contestant,  J.  R.  Chal- 
meis,  and  who,  after  being  duly  sworn,  testifies  as  follows  (Rec,  p.  955) : 

Q.  1.  What  is  your  name  ? — A.  1.  P.  L.  Redwine. 

Q.  2.  Your  age  ? — A.  2.  I  am  54  years  old. 

Q.  3.  Your  occupation  ? — A.  3.  I  am  a  farmer. 

Q.  4.  How  long  have  you  been  living  in  La  Fayette  County! — A.  4.  I  have  lived 
here  54  years. 

Q.  5.  Were  you  one  of  the  commissioners  of  election  last  fall,  supervising  the  reg- 
istration and  poll-books ;  and,  as  such,  what  were  your  duties  f — A.  5.  Yes,  sir ;  I  was 
guided  by  the  statute,  and  had  it  by  me  all  the  while. 

Q.  6.  What  were  the  condition  of  those  books  when  you  adjourned  f — A.  6.  So  far 
as  I  knew,  correct. 

Q.  7.  What  time  did  your  board  adjonrn  ? — A.  7.  I  suppose  a  Saturday  evening. 

Q.  8.  Have  you  examined  those  books  since  the  election  ;  and,  if  so,  what  was  the 
condition  of  the  books  compared  to  the  condition  when  you  left  them  ? — A.  8.  They 
were  not  the  same. 

Q.  9.  In  what  respect  were  they  not  the  same? — A.  9.  There  was  names  erased  that 
were  not  when  I  saw  them  last  before  the  election. 

Q.  10.  You  mean,  in  this  answer,  that  the  books  were  not  in  same  condition  as  when 
the  board  adjourned  ? — A.  10.  I  do. 

Cross-examination : 

Q.  1.  You  left  Friday  evening  and  did  not  return,  but  left  the  other  two  members 
of  the  board  still  in  session,  did  you  not? — A.  1.  I  did. 

Q.  2.  When  was  the  last  time  before  the  election  and  the  first  time  after  the  election 
that  yoii  examined  the  books  ? — A.  2.  About  Wednesday  evening  previous  to  the  elec- 
tion we  closed  the  inspection  of  the  books.  I  think  about  Wednesday  evening  after 
the  election  we  began  looking  over  the  books  again. 

Q.  3.  In  the  selection  of  officers  of  election,  was  not  a  list  furnished  yon  or  yonr 
board  in  handwriting  of  W.  G.  Beauland,  giving  the  names  of  such  Republican  offi- 
cers as  were  desired  appointed  at  each  box,  and  did  your  board  not  follow  that  list? — 
A.  3.  It  did  verbatim. 

Q.  4.  You  were  not  present  when  the  board  adjourned,  were  you,  but  these  appoint- 
ments had  all  been  made,  had  they  not? — A.  4.  I  was  not  present  at  the  adjourn- 
ment, but  the  appointments  had  all  been  made  before  I  left. 

Q.  5.  Was  there  any  complaint  about  these  appointments  or  any  of  them? — A.  5. 
But  one ;  Capt.  G.  F.  Scott  was  complained  of  by  both  sides. 


CHALMERS    VS.    MORGAN.  415 

It  will  again  be  observed  that  this  witness  is  speaking  of  the  boobs 
of  all  the  precincts  in  the  county  (as  a  county). 

It  will  also  be  observed  that  coutestee's  counsel  failed  to  attempt  to 
show  that  the  erasing  of  names  was  confined  to  particular  precincts. 

These  two  witnesses  (Alexander  and  Eedwine)  being  their  trusted 
political  friends,  and  coutestee  fails  to  introduce  a  single  witness  to  dis- 
prove the  facts  proven  by  these  two  Democratic  election  commissioners. 

Thomas  Strawn  (white),  a  deposition  on  behalf  of  the  contestant;  being  first  duly 
Bworn,  testifies  as  follows: 

Direct  examination  by  Mr.  Pierson  : 

Q.  You  live  in  the  Oxford  precinct  in  La  Fayette  County,  Miss.,  do  you? — A.  Yes? 
sir. 

Q.  How  long  have  yon  lived  there? — A.  I  have  lived  there  about  20  years,  sir. 

Q.  What  position  did  yon  occupy  at  the  North  Oxford  box  at  the  last  election  in 
La  Fayette  County  ? — A.  I  was  supervisor. 

Q.  Did  you  examine  the  register- book  there  that  day? — A.  Yes,  sir. 

Q.  Slate  the  condition  of  that  book  with  reference  to  the  number  of  Republican 
voters'  names  being  scratched  off". — A.  Well,  there  was  about  200  of  them,  to  ray  rec- 
ollection. 

Q.  State  how  many  attempted  to  vote  there  that  day,  as  near  as  you  can,  who  were 
refused. — A.  Well,  sir,  I  set  down  names  till  I  got  190,  I  think  it  is,  and  then  I  went 
home ;  the  voting  was  near  about  over  when  I  left ;  don't  know  how  many  after 
ihat. 

Q.  What  time  did  you  quit? — A.  It  was  between  4  and  5  o'clock. 

Q.  Did  you  know  personally  any  considerable  number  of  the  men  who  attempted  to 
vote  there  that  day  ? — A.  Yes,  sir  ;  I  knew  a  great  many  of  them. 

Q.  Did  you  kno»v  whether  or  not  they  were  voters  at  that  box,  or  had  been  voters 
there  ? — A.  Yes,  sir ;  had  been  voters  there  all  the  while. 

Q.  Upon  what  pretense  were  they  refused  a  vote  ? — A,  Because  their  names  were 
erased  from  the  books,  scratched  out,  sir;  all  that  I  learned.    (Rec,  p.  562.) 

The  conspiracy  here  is  clearly  established.  One  of  the  moving  spirits 
in  it  seems  to  have  been  the  contestee  himself,  who  the  proof  shows,  said  he 
was  in  favor  of  cheating  the  negro  out  of  his  vote  (Rec,  p.  934).  Another 
was  L.  S.  Dillard,  who  was  election  commissioner  in  1882  and  was  con- 
victed of  violating  the  election  law  (see  notice  of  contest,  Rec, ), 

and  the  third,  W.  V.  Sullivan,  member  of  Congressional  committee  for 
that  county.  The  principal  method  used  was  the  erasure  of  names  of 
Republicans  from  the  poll-books,  the  same  plan  adopted  in  contestee's 
county  in  1880,  for  which  the  commissioners  of  election  were  afterwards 
indicted,  tried,  and  convicted.  (See  digest  election  cases,  80-82,  Bu- 
chanan V8.  Manning,  p.  313). 

The  Republican  majority  in  this  county  is  at  five  boxes,  Abbeville, 
Alexander's  store,  College  Hill,  North  and  South  Oxford.  The  vote  at 
these  boxes  in  1882  was,  Chalmers  1,119  and  Manning  606.  They  are 
returned  this  time,  Chalmers  272  and  Morgan  911  (Rec,  p.  742).  The 
record  of  Buchanan  vs.  Manning  shows  gross  frauds  at  these  same  Re- 
publican boxes.  That  frauds  have  been  j)erpetrated  in  pursuance  of  a 
conspiracy  is  evident,  and  the  question  is,  what  shall  be  done?        r 

The  contestant  asks  that  the  returns  from  the  county  be  thrown  out, 
and  insists  that  each  county  should  be  treated  as  an  entirety  and  not 
each  box,  because  under  the  Mississippi  plan  each  county  has  a  return- 
ing-board  with  unlimited  power  as  to  erasing  names  from  the  poll- books, 
the  appointment  of  inspectors  of  elections,  and  the  rejection  of  what 
they  regard  as  illegal  ballots,  and  that  their  machinery  can  be  so  used 
as  to  permit  fair  elections  at  Democratic  boxes  and  open  the  door  for 
all  manner  of  frauds  at  the  Republican  boxes.  The  contestee  practi- 
cally admits  the  frauds  in  this  county,  and  in  his  brief  (page  100)  sug- 
gests that  if  the  rejected  votes  (422)  and  the  vote  at  College  Hill  be 


416  CHALMERS    VS.    MORGAN. 

counted  for  contestant,  leaving  Uiin  the  oth^r  boxes  as  returned,  he  will 
still  have  a  majority  in  this  county. 

Looking  to  what  is  called  the  unexamined  boxes  of  this  county,  it 
will  be  seen  that  they  are  returned  for  Morgan  860,  Chalmers  268. 
Looking  to  page  145  of  reply  brief  of  contestant,  the  boxes  outside  of 
Abbeville,  College  Hill,  North  and  South  Oxford,  gave  Manning  607, 
Chalmers  483.  It  was  impossible  for  contestant  to  take  i)roof  as  to 
these  boxes,  growing  out  of  the  fact  that  the  only  llepublican  lawyer 
he  could  get  hero  was  afraid  to  take  testimony  there.  (See  Montgom- 
ery, Rec,  p.  593.) 

Q.  Did  I,  or  not,  apply  to  you  to  act  as  my  attorney  to  take  my  testimony  at  Ox- 
ford ? — A.  You  did. 

Q.  Did  you,  or  not,  advise  me  subsequently  whetlier  you  considered  it  prudent  for  me 
to  do  so  Of  not ;  if  so,  state  what  you  said  ? — A.  I  had  conversations  with  you  to  that 
eifect,  in  which  I  stated,  that  considering  the  late  hour  at  which  I  had  received  the 
word  and  my  previous  engagements  that  I  ought  to  attend  to,  I  couldn't  take  the  time 
until  March  2ud  for  that  work,  but  in  addition  to  that,  and  especially  i6asmuch  as  there 
was  a  very  strongpvejudice  against  me  at  Oxford  politically  on  account  of  a  Repnbjican 
speech  made  in  Illinois  last  campaign,  having  caused  me  the  loss  of  my  situation  and  my 
entire  yeai-'s  work,  that  I  didn't  think  it  was  prudent  to  unite  two  mightier  elements 
in  the  taking  of  your  testimony. 

Q.  What  two  mightier  elements  do  you  refer  to  ? — A.  I  refer  to  the  prejudice  which 
already  existed  againstmyself  andtheprejudice  against  Gen.  Chalmers  and  his  contest. 

Beanland  says: 

Qu.  8lh.  Did  you  hear,  or  see  in  the  newspapers  published  in  Oxford,  any  expres- 
sions as  to  the  safety  of  Gen.  Chalmers  or  his  friends  if  they  came  to  Oxford  to  take 
testimony?  If  so,  state  what  you  heard,  and  what  you  read. 
(This  question  objected  to  because  it  calls  for  hearsay  evidence.) 
Ans.  The  Oxford  Globe,  a  Democratic  newspaper  printed  at  Oxford,  some  time  in 
February  said,  in  a  short  squib,  that  if  Chalmers  came  here  and  did  right  he  would 
Lave  no  trouble,  but  if  he  acted  as  he  did  in  De  Soto  County,  that  he  had  bettor  pack 
up  his  traps  and  get  away,  or  words  to  this  effect.     (Rec,  p.  1041.) 

But  while  contestant  took  no  proof  as  to  other  boxes,  there  is  proof 
made  by  W.  H.  Caruthers,  witness  for  contestee,  that  400  names  were 
erased  from  the  poll-beoks  at  Taylor's.  He  undertakes  to  account  for 
this  by  saying  the  books  had  been  purged  for  the  railroad  election  by 
the  erasure  of  those  who  had  died  or  moved  away,  but  he  says  there 
was  complaint  made  that  voters  who  came  up  to  vote  were  rejected  be- 
cause their  names  were  not  on  the  books.  But  the  Democratic  commis- 
sioners, who  were  reluctant  witnesses  for  contestant,  Alexander  and 
Eedwine,  both  say  the  poll-books  had  been  changed  after  they  went 
from  their  hands.  And  the  fact  that  voters  came  up  to  vote  at  Taylor's 
shows  they  had  neitlier  died  nor  removed. 

Further,  a  comparison  of  the  returns  from  Alexander's  store  in  1882 
and  1888  shows  a  strong  presumption  that  Eepublicau  voters  were 
erased.  In  1882  the  vote  stood  Manning  99,  Chalmers  124.  (See  Re- 
ply Brief,  145.)  In  1888  the  returns  show  Morgan  96,  Chalmers  61. 
(Rec,  p.  742.)  From  this  it  will  be  seen  that  while  Morgan  got  3 
votes  less  than  Manning,  Chalmers  is  cut  off  63  votes.  With  the  proof 
as  to  the  conspiracy  and  the  proof  of  wholesale  erasures  at  every  box 
examined  about,  this  is  circumstantial  evidence  that  the  same  thing 
was  done  at  Alexander's  store  and  all  over  the  county.  Thus  a  state 
of  confusion  is  brought  by  the  frauds  committed,  which  makes  it  impossi- 
ble to  ascertain  the  true  vote.  Under  these  circumstances  there  is  but 
one  course  left  to  do  justice,  and  that  is  to  reject  the  returns  from  every 
precinct  in  this  county  and  count  oidy  the  vote  proved. 

The  methods  in  this  county  are  well  described  by  two  witnesses  on 
cross-examination. 


CHALMERS   VS.   MOEGAK.  417 

Beanland  says  (Rec,  p.  596) : 

Q.  Please  describe  and  detail  the  Miss.  plan. — A.  Well,  I  suppose  you  have  heard, 
•without  me  describing  it.  It  is  to  carry  it  the  way  they  want  it.  If  they  can't  carry 
it  one  way,  they  carry  it  another.  Can't  carry  it  by  fair,  carry  it  otherwise,  or  foul. 
If  you  had  been  down  there  in  that  country  and  heard  what  we  Republicans  have 
you  could  very  easily  understand  the  Miss.  plan. 

Q.  Where  did  you  receive  that  information  about  carrying  the  election  anyway; 
is  that  based  upon  your  experience? — A.  Yes,  sir,  it  is;  I  know  whereof  I  speak. 

I.  W.  Hines  says  (Rec,  p.  627) : 

Q.  Can  you  name  an  instance  where  the  gentlemen  w6ose  names  you  have  given 
and  denominated  bulldozers  put  their  bulldozing  into  operation  at  the  election  ? — 
A.  Yes ;  of  conrse,  we  can  all  know ;  in  that  country,  sir,  at  that  particular  box,  at 
the  time  Tilden  and  Arthur  election,  they  fired  pistols  inside  of  the  house,  struck  one 
of  the  judges  on  the  feet  and  the  nigger  ran  out;  the  window  lights  were  broken 
out,  and  after  they  got  the  ballot  fixed  up  to  suit  them  they  sent  ior  the  nigger  to 
come  in  ;  he  was  somewhere  down  the  railroad. 

ABBEVIIXE  PRECINCT. 

Rec,  p.  555 :  Witness  Word,  examined  book  for  the  precinct  Satur- 
day before  election  down  to  letter  K  for  erasure  of  names ;  after  the 
election  witness  examined  same  book  to  letter  K,  and  23  names  had 
been  erased  since  his  examination  before  election. 

Rec,  p.  624  (Hines) :  Polling  place  fired  into  during  counting  of  vote 
and  inspectors  refused  to  continue  counting  at  that  place,  but  finished 
the  count  at  another  house ;  only  216  votes  polled,  but  247  counted ;  40 
voters  denied  the  right  to  vote,  name  being  erased  or  not  on  poll-book, 
many  of  whom  were  known  to  him  as  Republican  voters  and  as  having 
registered  only  a  few  days  before. 

Witness  shows  that  election  has  been  broken  up  by  bulldozers  at  this 
box  in  former  years. 

Returns:  Morgan,  131;  Chalmers,  116.  The  proof  shows  31  fraudu- 
lent votes  in  excess  of  voters  found  in  the  box,  and  43  votes  illegally 
rejected.  At  this  box  Manning  received  but  92  votes,  and  if  the  31 
illegal  votes  be  taken  from  the  count  for  Morgan,  it  leaves  him  8  more 
votes  than  Manning  had.  At  this  box  Chalmers  had  199  against 
Manning,  and  if  the  43  illegally  rejected  votes  be  added  to  his,  he  still 
has  40  less  than  he  had  against  Manning.  The  returns  can  not  be 
relied  on,  and  taking  the  proof,  the  box  should  be  counted,  Morgan  100 
and  Chalmers  156. 

Record,  page  565 :  A  vent.  College  Hill  precinct,  appointed  Republi- 
can inspector,  but  was  not  permitted  to  serve  by  Democratic  inspectors; 
says  over  200  Republican  tickets  issued  and  voted  there  (returns  show 
Chalmers  26  votes).  Witness  (Avent)  remained  all  day  taking  voters 
to  polls;  deputy  sheriff  says  20  or  30  whites  (only)  voted. 

Cross-examiuation:  Says  a  great  many  more  Republicans  voted, 
"besides  those  he  walked  up  to  the  polls  with;"  shows  he  walked  up  to 
polls  with  about  75  Republicans;  first  election  witness  ever  attended. 

As  to  this  box  Beauland  testifies  as  follows : 

I  heard  W.  W.  M'Maan,  one  of  the  judges  at  College  Hill,  say  they  went  there  to 
beat  anybody  the  damn  niggers  would  vote  for,  and  tiey  did  it.  Had  the  votes  been 
1,500  it  would  have  made  no  difference. 

Q.  When  you  say  it  proTed  true  that  the  niggers  come  up  dead,  what  do  you  mean 
by  that  ?— A.  I  mean  by  that  that  they  were  not  allowed  to  vote. 

Q.  Why  ? — A.  Their  names  were  scratched  off  the  poll-books. 

Q.  How  were  they  marked  ''dead"  on  the  poll-books? — A.  That  was  my  informa- 
tion ;  I  didn't  see  the  books.    (Rec,  p.  595.) 

Word  says: 

Q.  Did  you  have  any  conversation  with  these  judges  of  election  through  the  county 
of  La  Fayette  as  to  the  way  they  proposed  to  carry  things,  and  did  carry  them  at  the 

H.  Mis.  137 27 


418  CHALMERS   VS.   MORGAN. 

last  election? — A.  Yes,  sir;  yes,  sir;  it  was  since  the  election;  I  were  in  the  back 
room  of  Brenner  &  Wallace's  store  at  Oxford,  and  we  were  discussing  this  erasure, 
and  Mr.  McMahon,  who  was  an  inspector  of  the  election  at  College  Hill,  walked  in  ; 
I  appealed  to  him,  and  asked  him  if  he  thought  it  was  right.  He  said  that  he  thought 
any  thing  was  right.  He  says,  "My  God,  any  thing  is  right  to  keep  ahead  of  the 
negro."  "  Well,"  I  said,  "  there  was  no  negro  wanted  in  this  canvass."  "  That  don't 
make  a  damn  bit  of  difference;  the  negroes  voted  for  Chalmers,  and,  by  God,  if  wo 
can't  stuff  'um  ont,  wee'l  shoot  'um  out;  we  don't  give  a  damn  how  we  get  'um  out, 
.  but  we  are  going  to  control  'urn."  That  is  his  words  as  near  exactly  as  I  can  get  it; 
that  was  the  meaning  of  them.     (Rec,  p.  556.) 

Mr.  McMahon,  the  Democratic  inspector,  admits  that  one  Avent  was 
appointed,  as  shown  l>y  his  list,  but  rejects  this  Avent  on  a  frivolous 
excuse.  He  denies  the  statement  of  Beauland,  but  did  not  deny  the 
statement  of  Word. 

W.  W.  McMahon,  a  witness  for  contestee,  next  duly  sworn,  on  oath  says : 

Q.  Were  you  a  judge  of  election  in  Nov.,  '88,  at  College  Hill  precinct.  La  Fayette 
County,  Mississippi  ?  If  so,  how  was  the  election  conducted,  and  what  was  the  i-e- 
eult  ? — A.  I  was.  It  was  an  orderly,  fair,  and  impartial  election  in  every  respect,  and 
resulted  in  a  Democratic  majority  of  about  280. 

Q.  Did  you  at  any  time,  in  the  presence  of  W.  G.  Beauland,  state  in  regard  to  the 
approaching  election,  1888,  Nov.,  that  yon  thought  that  any  person  who  the  niggers 
voted  for  should  be  beaten,  and  that  you  and  other  Democrats  at  College  Hill  were 
going  to  beat  them,  no  matter  if  they  had  l,i>00  majority,  or  any  thing  of  that  kind  f — 
Ans.  I  had  no  such  conversation  with  him  or  in  his  presence,  at  or  before  the  election. 
I  s'd  after  the  election,  publicly,  that  I  did  not  think  the  negro  ought  to  be  allowed 
to  vote.  A  discussion  was  up  in  a  crowd  as  to  whether,  as  a  general  proposition,  the 
negro  should  be  allowed  to  vote,  whether  the  suffrage  should  not  be  taken  from  him, 
and  I  expressed  the  view  that  it  was  a  mistake  that  he  should  be  clothed  with  the 
elective  franchise.  This  in  no  way  influenced  my  action  in  that  election.  I  did  not 
aid,  assist,  or  connive  at  any  attempt,  if  any  was  made,  to  keep  any  one  from  voting 
and  his  vote  being  counted  as  he  wished. 

Ques.  Did  any  one  prevent  any  Republican  judge  or  inspector  or  supervisor  from 
acMug  at  the  College  Hill  precinct? — Ans.  One  Avant  presented  himself  claiming  to 
have  been  appointed  Rep.  supervisor,  and  when  asked  his  name  it  proved  not  to  be 
the  one  who  was  appointed.  And  he  was  then  asked  what  name  he  proposed  to  vote 
under,  and  he  said  his  real  name,  and  his  name  was  not  the  name  of  the  person  who 
was  appointed,  and  he  then  decided  to  vote  on  his  name  and  not  serve  under  another 
nam",  as  supervisor  of  election,  and  another  negro  was  then  selected  as  such  super- 
visor, who  was  a  Republican. 

Q.  In  whose  possession  was  the  ballot-box  left  from  the  time  of  the  closing  of  the 
polls  until  the  voting  began  ?  And  when  the  counting  began  was  it  continuous  until 
it  was  completed,  and  what  chance  was  there  given  for  false  counting  ? — A.  It  was  in 
the  joint  possession  of  the  Republican  and  Democratic  officers,  and  Jim  ,  one  of 

the  Republican  judges,  kept  the  key  to  the  box.  They  all  eat  at  the  same  place  and 
went  and  came  together.  And  after  supper  and  counting  them  comujpnced  it  was 
continuous,  open,  public,  and  no  chance  for  false  counting  ;  Republicans  as  well  as 
Democrats  were  present  and  witness  the  counting  of  the  votes,     (Rec,  p.  962.) 

OXFORD  PRECINCT  (NORTH  BOX). 

Eeturns  (Rec,  p.  742)  show  Chalmers  37  votes. 

Supervisor  Strawn  (Rec,  p.  562)  and  Beauland  (p.  595.) :  Kept  list. 
Two  hundred  Republican  names  erased,  all  former  voters  at  that  box; 
only  about  one  in  twenty-five  colored  men  got  to  vote. 

OXFORD  (SOUTH  BOX). 

Returns  (Rec,  p.  742)  show  Chalmers  32  votes. 

Supervisor  Word  (Rec,  p.  554)  and  Beauland  (p.  595) :  Only  eight 
colored  men  allowed  to  vote.  One  hundred  and  seventy-nine  Repub- 
licans did  not  vote,  uames  erased,  and  also  those  whose  names  could 
uot  be  found.    Witness  was  marked  dead  and  did  not  vote. 


CHALMERS    VS.    MORGAN. 
The  vote  of  La  Fayette  County. 


419 


As  returned. 

As  proved. 

Chalmers. 

Morgan. 

Chalmers. 

Morgan. 

116 
26 
37 
32 

131 
285 

219 
180 

156 

200 
227 
211 

100 

CoUeo'eHill    

Uortf  Oxford 

210 

Soutli  Osford 

180 

Total 

211 

815 

704 

490 

The  count  then  stands ; 


Chalmers. 

Morgan. 

7,186 
40 

0,295 

Abbeville : 

Add i 

31 

Cottage  Hill: 

Add *. 

7,226 
174 

9,264 

285 

North  Oxford: 

A.dd       

7,400 
190 

8,979 

South  Oxford: 

Add 

7,590 
179 

8,979 

Deduct 

Total 

7,769 

8  979 

The  unexamined,  boxes  of  this  county  should  beyond  question  be  re- 
jected. If,  as  the  proof  indicates,  the  wholesale  disfranchisement  of  the 
voters  of  this  was  planned  or  consented  to  by  the  friends  of  contestee, 
no  court  of  equity  or  law  in  the  world  would  allow  them  to  take  advan- 
tage of  this  wrong,  and  every  presumption  would  be  given  against 
him.  To  talk  about  a  presumption  in  favor  of  the  unexamined  boxes  in 
this  county  would  be  most  manifest  injustice. 

TALLAHATCHIE  COUNTY. 

In  this  county  an  ignorant  negro,  who  was  a  Democrat,  was  appointed 
commissioner  of  election  to  represent  the  Republican  party.  T.  W. 
Turner  says : 

Q.  Who  was  the  representative  of  the  Republican  party  on  the  board  of  oommis 
siouers  ? — A.  Geo.  Lee,  colored  man. 

Q.  Was  he  recognized  by  the  Republicans  or  not  ?— A.  He  waa  not.  To  the  con- 
trary they  were  requested  not  to  appoint  him. 

Q.  Why  ?  —A  We  didn't  look  upon  him  as  a  Republican,  the  man  to  represent  our 
party. 

Q.  Was  he  or  not  known  as  a  Democrat?— A.  He  was,  among  his  own  class  of  people. 

Q.  He  was  a  colored  man,  was  he? — A.  Yes,  sir. 

Q.  And  known  by  the  colored  men  to  be  a  Democrat? — A.  Yes,  sir.  Recognized  by 
them  to  be  a  Democrat.  I  don't  think  he  could  read  or  write.  Utterly  unoapableof 
adding  up  a  column  of  figures.  (Rec,  p.  447.) 


Mr.  Polk,  a  Democrat  and  Circuit  Clerk,  says : 

Cross-int.  2.  State,  if  you  know,  who  was  the  representative  of  the  Republican 
party  on  the  board  of  commissioners,  and  whether  or  not  he  conld  read  and  write. 

Ans.  cross  2.  George  Lee  was  the  representative  of  the  Republican  party  on  the 
board  of  election  commissioners :  he  can  read  a  little,  but  can  not  write  his  name. 
(Rec,  p.  844.) 


420 


CHALMEfeS   VS.    MORGAN; 


Mr.  Byrd,  a  Democrat  and  commissioner  with  him,  says : 

Cross-inter'y  4.  State,  if  you  know,  whether  or  not  George  Lee  was  a  colored  maiij 
and  whether  or  not  he  can  read  and  write. — Ans.  4.  George  Lee  is  colored;  don't  think 
he  can  read  or  write.  (Rec,  p.  845.) 

The  Eepublicans  have  for  years  been  persistently  refused  any  com- 
missioner or  inspector  asked  for  by  them.    T.  W.  Turner  says: 

Q.  Did  you  ask  the  county  commissioners  for  a  representative  of  the  Republican 
partyasiuspectorat  each  box? — A.  I  don't  remember  whether  I  did  or  not  officially  j 
my  impression  is  thatl  asked  the  county  commissioners  or  one  of  the  county  commis- 
sioners, the  one  I  believe  was  divested  of  party  prejudice,  would  be  governed  by  his 
oath  of  office,  if  he  wouldn't  see  that  we  got  one  representative  from  the  Republican 
party  that  could  read  and  write  as  inspector  at  each  box;  that  was  Sam  May,  oneof  the 
county  commissioners;  he  said  he  would  do  the  best  he  could;  they  never  reported  to 
me  any  names  or  asked  me  as  chairman  of  the  Republican  executive  committee;  as 
chairman  of  the  Republican  executive  committee,  they  never  asked  me  for  a  list  of 
inspectors  to  represent  our  party,  and  in  past  years  had  never  given  me  any  recognition 
officially. 

Q.  Have  or  not  in  past  years  the  commissioners  been  asked  to  give  a  fair  representa- 
tive to  the  opposition  party,  and  have  they  or  not  refused? — A.  They  have  been  and 
have  persistently  refused.    (Rec,  p.  447.) 

This  shows  a  conspiracy  to  defraud  under  the  rule  laid  down  in  Mc- 
Duifie  8v.  Turpin. 

Butthemostconclusiveevidence  of  fraud  is  to  be  found  in  the  returns 
themselves. 

Charleston,  Mississippi, ,  1888. 

To  Hon.  Geo.  M.  Govan, 

Secretary  of  State,  Jackson,  Miss. : 

The  following  are  the  returns  of  an  election  held  in  Tallahatchie  County  on  the  6th 
day  of  November,  A.  D,  1888: 


Precincts. 

Names  of  candidates. 

a 
I 

1 

1 

o 

-2 

£ 
> 

3 

1 

S 

s 

^ 

o 
p. 
P< 

H 

1 

d 

O 

s 

e 

1 

e 
H 

For  electors  for  President 
and  Vice-President  of 
the  United  States. 

182 
182 
182 
182 
182 
182 
182 
182 
182 

112 
112 
112 
112 
112 
112 
112 
112 
112 

66 
66 
66 
66 
66 
66 
66 
66 
66 

56 
56 
56 
56 
56 
56 

65 
65 
6.'5 
65 
65 

82 
82 
82 
82 
82 
82 
82 
82 
82 

33 
33 
33 
33 
33 
33 
33 
33 
33 

99 
99 
99 
99 
96 
99 
99 
99 
99 

124 
124 
124 
124 
124 
124 
124 
124 
124 
28 
28 
28 
28 
28 
28 
28 
28 
28 

126 

23 
23 
23 
23 
23 
23 
23 
23 
23 

61 

61 
61 
61 
61 
61 
61 
61 
61 

92 
92 
92 
92 
92 
92 
92 
92 
92 

26 
26 
26 
26 
26 
26 
26 
26 
26 

IS 

1 

1 

1,021 

1.021 

1,021 

1,021 

1,021 

1,021 

1, 021 

1,021 

1, 021 

28 

28 

28 

28 

28 

28 

28 

28 

28 

1,021 
2 

28 

993 

L.  M.  South  worth 

E.  S.  Candler,  jr 

Wni.  M.  Strickland 

D.  A.  Scott 

993 
993 
993 
993 

O.F.  Bledsoe 

993 

W.  D.  Gibbs 

56  1  an 

993 

E.J.  Bowtrs 

C.  E.  Hooker,  jr 

H.  F.  Simrall 

56 
56 

65 
65 

993 
993 

li.  N.  Tindall 

W.  H.  Vassar 

G.  M.  Buchanan 

-- 

Henry  Meyer 

L.  J.  Scurlock 

' 

J.  R.  S.  Pitts 

0.  L.  Garrett 

T.  J.  Jackson 

For   Representative    in 
the  but  Congress,  2d 
Congressional  district. 

J.  B.  Morgan 

180 
2 

112 

66 

58 

65 

82 

33 

99 

23 

61 

92 

26 

991 

J.  R.  Chalmers 

James  Witherspoon 

28 

CHALMERS    VS.    MORGAN.  421 

State  of  Mississippi,  Tallahatchie  County  : 

We,  the  undersigned  commissioners  of  eleotion  for  Tallahatchie  County,  certify 
that  the  foregoing  tabular  statement  is  a  trite  and  correct  return  of  the  whole  number 
of  votes  cast  for  the  several  offices  named  therein  at  the  general  election  held  in  said 
county  on  the  6th  day  of  November,  1888. 

A.  L.  Byrd, 

S.  D.May, 

«    George  Lee, 

Commiasionera  of  Election. 

(Rec,  p.  745.) 

There  are  two  palpable  frauds  shown  here — one  false  return  and 
the  other  forgery. 

Revised  Code  of  Mississippi,  sec.  140,  p.  82,  says : 

The  commissioners  of  election  sImiU,  within  ten  days  after  the  election,  transmit 
to  the  Secretary  of  State,  to  be  filed  in  his  office,  a  statement  of  the  whole  number  of 
votes  given  in  their  county  for  each  candidate  voted  for  in  such  county  for  any  office 
at  such  election. 

This  law  has  been  construed  by  the  United  States  court  in  Mississippi, 
and  it  was  held  that  "A  statement  of  the  whole  number  of  votes  given" 
meant  a  return  of  all  the  votes  cast,  whether  counted  or  rejected,  and 
if  rejected,  a  statement  as  to  why  they  were  rejected.  A  failure  to  do 
this  was  held  to  be  a  crime,  punishable  in  the  United  States  court. 
(See  case  of  United  States  vs.  M.  B.  Collins  et  al.  in  Buchanan  vs.  Man- 
ning, Dig.  Ei.  cases,  1880-'82,  p.  314.)  They  were  indicted  for  making  a 
partial  return  and  plead  guilty.  That  these  commissioners  made  a 
false  and  criminal  return  to  the  Secretary  of  State  is  clearly  proved  by 
the  witnesses  for  contestee,  who  say  about  600  votes  for  Chalmers  were 
thrown  out  because  they  had  notched  edges.  The  return  is  further 
shown  to  be  false  by  comparison  with  the  precinct  returns,  which  the 
clerk  certifies  and  also  testifies  is  a  true  copy  from  the  certified  lists  on 
file  in  his  office.  The  commissioners'  return  give  Chalmers  but  2  votes, 
while  the  precinct  returns  give  him  533.  Again,  the  precinct  returns 
give  Morgan  but  162  at  Charleston,  while  the  commissioners  give  him 
180.  The  commissioners  returned  28  votes  for  Witherspoon  for  Con- 
gress at  Rosses'  Mill,  while  the  precinct  returns  from  this  box  give  10 
to  Chalmers  and  none  to  Witherspoon.  This  false  return  is  concluded 
with  forgery.  The  name  of  George  Lee  is  signed  in  full  to  the  returns, 
when  all  the  witnesses  say  he  could  not  write  his  name.  The  witnesses 
for  contestee  not  only  show  that  the  returns  of  the  commissioners  were 
false,  but  that  the  returns  of  the  inspectors  at  Charleston,  which  gave 
Chalmers  but  2  votes,  were  equally  false. 

We  have,  then,  in  this  county  evidence  of  a  conspiracy  to  defraud  in 
the  appointment  of  the  commissioner  and  inspectors  of  election.  We 
see  that  there  were  21  more  votes  counted  than  voters  at  Graball.  We 
have  evidence  that  tickets  were  changed  at  Sherman's  Creek,  that 
tickets  were  snatched  from  the  Republican  distributer  at  Dogwood  Flat, 
and  that  violence  was  used  toward  negroes  for  political  reasons  before, 
during,  and  after  the  election. 

Contestee  suggested  that  the  ballots  for  contestant,  which  were 
thrown  out  because  ot  the  notched  edges,  might  be  counted. 

But  his  witnesses  differ  as  to  how  many  were  thus  thrown  out.  Do- 
gan  says  there  were  about  550  (Rec,  p.  841) ;  Polk  says  there  were  618 
(Rec,  p.  843) ;  Byrd  says  there  were  about  600  (Rec,  p.  845). 

This  confusion  and  uncertainty  as  to  the  true  vote  having  been  pro- 
duced by  the  fraudulent  conduct  of  the  ofiicers  of  election,  showing  a 
purpose  to  defraud  contestant,  the  returns  from  this  county  should  be 
rejected.    This  would  take  2  from  Chalmers  and  1,021  from  Morgan. 


422 


CHALMERS  VS.  MORGAN. 


But  if  tlie  votes  of  this  couuty  can  be  counted  from  the  returns  of 
the  precinct  officers,  the  result  would  be  as  follows : 
As  returned,  Chalmers  2,  Morgan  1,021. 

CRABALL. 

The  history  of  this  box  shows  it  is  notorious  for  fraud.  No  election 
was  held  there  in  1882,  and  the  reason  is  given  as  follows:  T.  W. 
Turner  says: 

Q.  Were  you  or  not  U.  S.  supervisor  in  1882,  when  I  was  a  candidate  against  Man- 
ning?— A.  I  was. 

Q.  State  whether  any  election  was  hehl  at  that  hox  at  that  time,  and  if  not,  why 
not?— A.  There  was  no  election  held  in  1882 — 1  believe  that  was  the  year— from  the 
fact  that  I  was  resisted  as  U.  S.  mai'shal,  and  turned  back  by  an  armed  body  number- 
lug,  I  think,  about  18,  with  Winchester  rifles.    ^ 

Q.  Were  you  on  your  way  as  U.  S.  supervisor  to  attempt  to  hold  an  election  at  that 
box? — A.  Yes,  sir;  on  the  public  road. 

Q.  You  state  you  were  met  by  18  rren  with  Winchester  rifles  who  forbade  you  going 
to  hold  the  election ? — A.  Yes,  8ir.     (Rec,  p.  416.) 

No  election  was  held  there  in  1886  as  will  be  seen  from  the  returns. 
(Eec,  p.  737.) 

Returns  of  election  held  in  Tallahatchie  County,  Miss.,  on  Noveniber  2d,  1886,  to  elect  Con- 
gressman for  the  3rd  [sAou/d  he  2nd]  Congressional  district. 


C»ndidate  for  Con- 
greaaman. 


J.  B. 

Morgan. 


Jas.K. 
Cbalmera. 


Harrison 

Boothe'a 

Sherman  Creek . 

Center  Point 

Charleston 

New  Hope 

Ross'MHl 

Dogwood  Flat  .. 

Loverette 

Tippo 

Hybemla 

Graball 

Brooklin 

Buford'a 


Total.... 
Majority. 


315 

1S4 


131 


At  this  election  the  officers  appointed  by  the  Democrats  refused  to 
hold  any  election  there  until  they  saw  the  citizens  were  about  to  hold 
an  election  themselves.  Then  some  of  those  appointed  agreed  to  act, 
and  the  election  was  held.    (See  Rec,  p.  446.) 

This  election,  as  returned  by  the  precinct  officers,  shows  21  more  votes 
returned  than  there  were  voters.  There  were  211  colored  voters  there, 
and  Chalmers  is  returned  211  votes.  There  were  only  40  white  voters 
who  voted,  and  Morgan  is  returned  61.  (See  Rec,  p.  451.)  From  this 
it  is  evident  that  21  votes  should  be  taken  for  Morgan  here.  The  couut 
then  stands : 


Brought  forward 

Graball: 

Ad<l  precinct  retuma . 

Deduct  stuffed 


8,970 


CHALMERS   VS.   MORGAN.  423 

SHERMAN'S  CREEK. 

At  this  box  the  inspectors  were  all  Democrats.  One  inspector  was 
seen  changing  tickets,  and  the  voters  were  fired  into  while  the  election 
was  going  on. 

Deposition  of  J.  E.  DRAKE  (col.),  a  witness  on  behalf  of  the  contestant,  being  first 
duly  bworu,  deposed  as  follows : 

Examination  by  General  Chalmers: 

Q.  What  box  do  you  vote  at  ? — A.  The  Sherman  box,  in  Tallahatchie  County. 

Q.  Is  the  majority  of  voters  at  that  box  colored  or  white? — A.  The  majority  is 
white,  I  think,  but  we  have  very  near  as  many  colored  as  white. 

Q.  Was  fhere  any  shooting  into  the  voters  at  that  box  on  the  last  election  ? — A. 
Yes,  sir. 

Q.  What  position  did  you  occupy  there  that  day  ? — A.  U.  S.  supervisor. 

Q.  Please  explain  the  shooting  you  speak  of. — A.  Well,  there  was  about  20  or  30 
shots.  The  men  were  on  a  bluff  a  little  above  the  house,  and  the  voters  were  about 
30  or  40  feet  from  the  house,  and  the  shooting  was  done  in  the  direction  of  the  men, 
and  one  of  the  balls  fell  right  in  front  of  one  of  the  voters. 

Q.  Were  they  white  or  colored  men  who  did  the  shooting  f — A.  They  were  white 
mt  n ;  hid  back  on  the  bluff. 

Q.  How  many  times  did  they  shoot — different  times  ? — A.  Twenty  or  30  different 
times  they  shot. 

Q.  Who  was  the  Republican  inspector  of  election  there  that  day,  or  claimed  to 
be? — A.  Alfred  Buckley. 

Q.  Could  he  read  or  write  ?— A.  No,  sir. 

Q.  Do  you  know  whether  he  was  in  fact  a  Republican  or  not? — A.  He  was  a  Dem- 
ocrat, and  always  had  been  a  Democrat,  and  voted  Democratic  that  day. 

Q.  Did  you  see  him  vote  that  day  ? — A.  Yes,  sir ;  I  seed  him  vote.  I  gave  him  a 
Republican  ticket  and  he  put  it  in  his  pocket,  and  when  he  went  to  vote  picked  up 
a  Democratic  ticket  and  voted  it. 

Q.  Did  you  see  anything  that  indicated  fraud  going  on  in  the  reception  of  the  vote ; 
if  so,  state  what  it  was? — A.  Now,  what  I  seed,  what  I  would  call  fraud,  he  would 
bring  his  hands  together  whenever  a  Republican  voted  and  handed  him  a  ticket.  He 
would  bring  his  right  hand  up  to  his  left  hand  and  then  put  a  ticket  into  the  box 
with  his  right  hand. 

Q,  As  if  he  was  changing  it? — A.  Yes,  sir.  It  looked  that  way  to  me.  It  was  go- 
ing on  while  I  was  noticing  it  all  the  while,  and  after  a  while  I  called  Buckley's  at- 
tention to  it.     (Rec,  p.  445.) 

Sam  Edsington,  being  duly  sworn,  testifies  as  follows : 

Int.  1.  What  is  your  name,  color,  and  politics  ? — Ans.  1.  Sam  Edington ;  black.  I 
have  very  little  to  do  with  politics,  but  was  always  Republican. 

Int.  2.  In  what  voting  precinct  did  you  live  at  the  last  election  ?— Ans.  2.  Sherman 
Creek. 

Int.  3.  Did  you  vote  at  the  last  election  ?  If  so,  state  at  what  place. — Ans.  3d.  I 
voted  at  Sherman  Creek. 

Int.  4.  How  long  did  you  remain  at  the  voting  place?  And  state  whetheror  not  the 
election  was  peaceable  and  quiet.— Ans.  4.  I  stayed  there  about  three-quarters  of  an 
hour.    No,  sir. 

Int.  5.  You  say  in  answer  to  4th  interrogatory  that  the  election  was  not  peaceab.e. 
State  in  full  how  it  was  interfered  with  ;  tell  all  about  it  in  your  own  language. — 
Ans.  5.  When  I  got  there  I  was  making  out  some  tickets  for  the  boys;  and  they  were 
shooting  jnst  above  my  head  west  of  the  voting  precinct.  I  told  the  boys  to  sft  still, 
I  reckoned  it  was  somebody  drunk ;  and  in  about  five  minutes  afterwards  they  com- 
menced shooting  again,  and  they  drew  lower  down  nearer  the  last  time  than  they  did 
the  Ist  time.  I  said,  "Boys,  this  is  getting  mighty  hot,  let  us  get  away  from  liere." 
Some  of  us  went  towards  the  polls,  the  others  went  home.  That  is  all  I  know 
about  it. 

Int.  6.  How  many  were  engaged  in  the  shooting,  and  were  they  shooting  at  any 
one  to  prevent  them  from  voting? — Ans.  6.  I  don't  know  how  many  ;  I  couldn't  tell. 

Int.  7.  What  made  you  think  it  was  getting  too  hot  for  you,  and  made  you  advise 
the  boys  to  get  away? — Ans.  7.  The  balls  were  coming  right  toward  us,  and  some  of 
them  struck  the  ground  in  three  feet  of  us. 

Int.  8.  How  many,  if  any,  failed  to  vote  who  went  to  the  polls,  on  account  of  the 
disturbance  ?  State  as  near  as  you  can  from  information  and  belief. — Ans.  From 
seven  to  eight,  I  think,  left  without  voting.     (Roc,  p.  1053.) 

This  box  was  returned  Chalmers  14,  Morgan  64. 


424 


CHALMERS  VS.  MORGAN. 


The  supervisor's  return  of  1882  shows  that  Chalmers  beat  Manning 
2  to  1  at  this  box.  The  commissioners  of  election  gave  Chalmers  none 
here.  The  returns  being  set  aside,  2  votes  proved  for  Chalmers  and 
none  for  Morgan,  we  should  add  2  to  Chalmers  and  take  64  from  Mor- 
gan, and  the  account  would  then  stand : 


Chalmers.     Morgan. 


Forward . . .. 

7,980 
2 

8,968 

Sherman's  Creek : 

Add 

65 

7,982 

8,893 

New  Hope:  The  commissioners  give  Chalmers  nothing,  but  the  pre- 
cinct oflQcers  return  for  him  37;  add  this  to  him  and  the  count  will  then 
stand : 


Chalmers. 

Morgan. 

7,982 
37 

8,893 

8.019 

8,893 

Leverett's :  At  this  box  there  was  a  row  gotten  up  to  intimidate  the 
voters  at  the  polls,  and  violence  inflicted  on  the  negroes  for  political 
reasons  afterwards. 

Gary  Byiium,  being  sworn,  testifies  as  follows : 

Int.  1.  In  what  precinct  did  you  live  at  the  election  of  1888? — Ans.  1.  Leverett's. 

Int.  2.  Did  yon  vote  at  the  last  election  ;  if  so,  where  did  you  vote  f — Ans.  2.  Yes  ; 
voted  at  Leverett's. 

Int.  3.  State  whether  or  not  the  election  was  peaceable  and  quiet,  and  whether  or 
not  all  were  permitted  to  vote  as  they  wished,  without  molestation? — Ans.  3.  It 
wasn't ;  they  started  cussing  and  fussing,  and  I  went  away. 

Int.  4.  Who  were  they  who  got  up  the  trouble;  were  they  Republicans  or  Demo- 
crats, and  what  was  the  trouble  about,  a  private  matter  or  politics  ? — Ans.  Turner 
and  Pute ;  they  were  Democrats ;  about  the  box  and  election. 

Int.  5.  Did  or  not  the  officers  of  the  election  interfere  to  prevent  the  disturbance  ? — 
Ans.  No,  sir;  Mr.  Pute  was  the  officer  himself.     (Rec,  p.  1047.) 

Lonis  Turner,  being  duly  sworn,  testifies  as  follows : 

Int.  1.  State  your  uame,  age,  and  place  of  residence. — Ans.  1.  Louis  R.  Turner ; 
thirty-six ;  Tallahatchee  County. 

Int.  2.  State  whether  or  not  you  was  living  in  this  county  at  the  last  election  ;  if 
so,  in  what  precinct  did  you  live  and  if  you  voted  state  where  you  voted. — Ans.  2. 
Yes;  Leverelt  precinct;  did  not  vote. 

Int.  3.  State,  if  you  know,  whether  or  not  there  was  any  excitement  about  the  elec- 
tion; ifso,  state  as  far  as  you  know,  what  was  done  calculated  to  intimidate  the 
voters;  state  in  full  your  knowledge  on  this  subject. — Ans.  3.  There  was  a  Demo- 
cratic torchlight  procession,  I  think  the  night  before  the  election,  around  and  about 
LeTerett  precinct,  and  there  was  frequent  firing  of  pistols  by  those  who  participated 
in  the  procession. 

Int.  4.  State,  if  you  know,  whether  or  not  there  was  any  outrages  or  lawlessness  on 
the  part  of  any  Democratic  club,  or  any  member  of  the  club.s,  immediately  before  or 
after  the  election ;  state  in  particular  all  you  know  on  the  subject.— Ans.  4.  Satur- 
day after  the  election  B.  F.  Pute  and  B.  M.  Turner  met  a  negro  by  the  name  of  Dick" 
Grantham  in  the  public  road  nt-ar  my  horse-lot;  they  stopped  Grantham  and  said  to 
him,  "You  damned  son  of  a  bitch,  hollow  hnrrah  for  Cleveland,"  which  he  did.  They 
then  told  him  to  ''sing  it  out  louder;"  ho  did  so,  and  they  rode  ou.  On  the  same  date, 
at  night,  I  heard  several  shots  fired,  I  thought  in  the  direction  of  some  negro  cabins 


CHALMERS  VS.  MORGAN. 


425 


on  my  place.  I  walked  out  in  my  yard,  and  iu  a  few  minutes  two  or  three  persona 
passed  ray  house.  I  recognized  B.  F.  Pute  and  B,  M.  Turner.  In  a  few  minutes 
afterwards  Ely  Taylor  and  his  wife,  who  live  on  my  i^lace,  came  to  my  house  and  said 
Mr.  Pute  and  Mr.  Turner  had  fired  into  their  house,  and  said  one  shot  struck  Martha 
Taylor  (Ely's  wife).     (Eec,  pp.  1048-1049.) 

At  this  box  the  commissioners  gave  Chalmers  nothing,  but  the  pre- 
cinct officers  returned  for  him  81 5  add,  this  and  the  count  will  then  stand : 


Chalmers. 


Morgan. 


Forward 

Leverett's,  add 


8,019 
81 


8,893 


8,100 


,893 


CENTER  POINT. 


The  commissioners  here  gave  Chalmers  nothing,  precinct  officers  re- 
turned for  him  13;  add  this  and  the  count  will  stand: 


Morgan. 


Forward 

Center  Point,  add . 


DOGWOOD  FLAT. 

At  this  box,  which  is  largely  Eepublican,  personal  violence  was 
inflicted  on  negroes  for  political  reasons  before  the  election,  and  the 
tickets  were  snatched  from  the  hands  of  the  Republican  who  was  dis- 
tributing them,  and  he  was  compelled  to  go  to  Charleston,  a  distance 
of  7  miles,  to  get  more  Rep  ublican  tickets,  and  during  this  time  many 
Republican  voters  went  away. 

Ben  Jones  says: 

Int.  4.  State  whether  or  not  you  was  solicited  to  join  the  Democratic  club  before 
the  election  ?  And,  if  so,  state  all  that  occurred  at  that  time. — Ans.  4.  I  was  asked  by 
Mr.  Borbee.  He  asked  me  down  there,  and  I  went  to  the  door.  He  asked  me  in  and 
asked  me  if  I  wanted  to  join.  I  asked  Mr.  Fedric  what  was  it.  He  says,  "  Ben,  it 
is  a  Democratic  club  ;  do  you  want  to  join  ?  "  I  said  no.  Mr.  Borbee  said,  "  Well, 
Ben,  get  out  of  the  door."  I  went  out,  went  over  to  the  store,  and  sat  down.  Mr. 
Turner  (don't  know  his  first  name)  was  there.  Me  and  him  sot  there  and  talked  a 
long  time.  He  says,  "  Uncle  Ben,  I  must  go  get  me  some  water."  He  goes  on  to  the 
well  and  told  Mr.  J.  Mnrphree.  They  called  him  in  the  house,  and  Henry  Harris 
came  on  to  the  store  and  sot  down  there  with  me.  We  sot  and  talks  and  runs  on  with 
one  another,  and  after  while  they  commence  speaking  in  the  house,  and  Henry  says, 
"  Hardside,  let's  go  to  the  window."  I  say  "Henry,  won't  they  trouble  us?"  He 
said  no.  We  went  as  close  to  de  window  as  about  13  feet.  Me  and  Henry  both  war 
standin'  in  about  13  feet  of  de  window,  in  plain  view,  lookin'in.  Mr.  Clarkson  come 
to  the  window  and  told  us  to  get  away.  We  went  right  straight  to  our  horses.  By 
de  time  I  got  on  my  horse  dere  was  a  man  come  out  dedoor  and  said  stop ;  and  I  tohl 
him  I  was  goin'  on  home  ;  I  didn't  have  no  business  there.  We  rid  on  den  and  got 
about  a  hundred  yds.  from  de  house.  We  looked  back  behind  and  I  said,  "  Henry, 
good  God,  look  at  the  white  folks  back  behind."  Henry  just  reched  up  and  got  his 
hat  and  commenced  fitein'  his  horse,  and  we  put  out.  They  runned  us  a  half  a  mile, 
and  when  dey  first  caught  up  with  me  they  struck  me  four  licks  across  de  head  ;  and 
I  looked  'round  at  him  and  I  said,  *'  Boss,  what  do  you  mean  ?  We  worn't  mean  in' 
any  harm."  And  he  said,  "  Damn  you,  stop  de  horse."  I  told  him  I  wouldn't  do  it. 
After  dat  my  horse  fell  down.  They  were  in  such  full  speed  after  Henry  and  runed 
over  m>^,  and  I  stepped  over  my  horse's  neck  and  over  de  fence  into  the  field,  and 
squatted  in  de  corner.  While  I  was  squatin'  in  de  corner  of  de  fence  I  held  my  hand 
up  and  found  blood  rnnnin'  into  it  from  my  head.  (Rec,  p.  1050.) 


426 


CHALMERS   VS.   MORGAN. 


T.  W.  Turner  says: 

Q.  If  there  is  anything  else  that  you  know  and  haven't  answered,  please  state  it. — 
A.  We  would  have  had  a  much  larger  vote  at  Dogwood  Flat  but  for  a  circumstance  that 
occurred  about  12  o'clock,  I  think  it  was.  The  colore!  man  who  held  the  Republican 
tickets  aud  was  distributing  the  same,  and  whose  name  was  Virgil  Gentry,  had  the 
tickets  forcibly  jerked  from  his  hands  and  pocket  and  destroyed  by  a  white  man  and 
Democrat,  a  member  of  the  club,  whose  name  was  Turner,  the  given  name  I  don't 
remember.  They  were  from  the  circumstance  forced  to  come  to  Charleston,  a  distance 
of  6  or  7  miles,  to  procure  more  tickets,  and  I  think  to  the  best  of  my  memory  I  only  had 
50  tickets  left  to  give  them.  I  think  it  was  only  about  50  tickets.  Many  of  our  voters 
leaving  during  the  time,  and  some  of  them  coming  to  Charleston,  thinking  they  could 
vote  there.  (Itec,  p.  449.) 

Virgil  Gentry,  being  duly  sworn,  testified  as  follows : 

Int.  1.  What  is  your  name,  color,  and  politics? — Ans.  1.  Virgil  Gentry;  black;  Re- 
publican. 

Int.  2.  In  what  precinct  did  you  live  at  the  election  of  1888? — Ans.  2.  Dogwood 
Flat. 

Int.  8.  Did  any  one  interfere  with  you  or  anyone  else  in  the  distribution  of  Repub- 
lican tickets  ? — Ans.  8.  Didn't  any  further  than  snatching  the  tickets  out  of  my 
pocket,  and  I  learned  afterward  that  his  name  was  Mr.  Turner.    (Rec.  p.  1054.) 

The  commissioners  here  gave  Chalmers  nothing.  The  precinct  offi- 
cers returned  for  him  93 :  add  this  and  the  count  will  stand — 


forward 

Dogwood  Flat. 


Chalmers. 


8,  m 
93 


8,206 


Morgan. 


8,893 


8,893 


BUFORD'8. 


The  commissioners  here  gave  Chalmers  nothing.    The  precinct  offi- 
cers returned  for  him  8;  add  this  and  the  count  will  stand — 


Forward 

Baford's,  add . 


Cbalmers. 


8,206 
8 


8,214 


Morgan. 


8,893 


8,893 


TIPPO. 


At  this  box  the  commissioners  and  the  inspectors  count  2'6  votes  for 
Morgan  and  none  for  any  one  else.  But  the  precinct  returns  show 
that  28  votes  were  cast,  so  that  5  votes  are  here  deliberately  thrown 
out  without  any  cause  being  assigned,  and  counted  for  no  one. 


BROOKLYN, 


At  this  box  the  commissioners  returned  none  for  Chalmers,  bnt  the 
precinct  officers  returned  for  him  48.  Adding  this,  the  count  will  stand 
thus: 


Forward 

Brooklyn,  add. 


Chalmers. 


8,214 
48 

8,262 


Morgan. 


8,893 


8,893 


CHALMERS    VS.    MORGAN. 


427 


BOOTHES. 


At  this  box  the  commissiouers  gave  Chalmers  nothing.    The  precinct 
ofiScers  returned  for  him  4 ;  add  this  and  the  count  will  stand — 


Chalmeis. 

Morgan. 

8,262 

4 

8,893 

8,266 

8,893 

HARKI80N. 


At  this  box  the  commissioners  gave  Chalmers  nothing ;  the 
officers  returned  for  him  12 ;  add  this  and  the  count  will  stand 


precinct 
thus: 


Chalmers. 

Morgan. 

8,266 
12 

8,893 

8,278 

8,893 

CHARLESTON. 

At  this  box  the  witnesses  for  the  contestee  show  that  the  same  false 
and  criminal  return  was  made  by  the  inspectors  at  Charleston  that  was 
made  by  the  commissioners.  They  returned  only  2  votes  for  Chalmers 
at  this  box,  as  being  the  whole  number  cast  for  him.  The  witnesses  for 
contestee  show  that  this  was  false,  and  that  a  number  of  votes  were 
thrown  out  here  for  him,  but  as  to  how  many  no  witness  undertakes  to 
say.  For  this  fraud  this  box  must  be  thrown  out,  and  as  no  vote  was 
proved  for  Morgan  there  should  be  taken  180  from  him.  It  is  proved 
that  3  white  men  here  voted  for  Chalra<?rs,  2  Democrats  on  Democratic 
tickets,  the  only  votes  counted,  and  Captain  Turner,  a  white  Republi- 
can. It  is  further  shown  that  155  colored  men  voted  at  this  box,  and 
the  testimony  of  Turner,  Pollard,  and  Buckley  all  show  that  the  negroes 
turned  out  better  to  vote  and  voted  more  enthusiastically  for  the  Repub- 
lican ticket  on  that  day  than  they  had  done  for  years.  They  fix  the 
number  of  colored  men  who  were  Democrats  at  that  box  at  5,  and 
Pollard  says  he  thinks  2  who  had  been  voting  the  Democratic  ticket 
did  not  do  so  that  day.  Captain  Turner  distributed  the  Republican 
tickets  and  testified  as  follows : 

Q.  State  whether  in  your  opinion  there  was  ballot-box  stuffing  at  Charleston  box 
or  not,  to  the  best  of  your  knowledge  and  belief. — A.  To  the  best  of  my  belief  and 
observation  the  tickets  were  exchanged  from  Republicans'  hands  before  they  got  to 
the  box  and  Democratic  tickets  inserted.  My  reason  for  that  belief  is  that  I  issued 
between  l(iO  and  190.  I  dis'member  the  exact  number,  reserving  the  name  of  each 
voter  upon  the  stub  of  the  ticket  which  I  now  have  in  my  safe,  and  by  referring  to  it 
I  can  get  the  exact  number  of  tickets,  and  I  will  file  that  stub  with  my  deposition  as 
Exhibit  B  to  my  deposition.  I  never  saw  during  my  career  as  member  of  the  Repub- 
lican executive  committee  a  more  united  and  enthusiastic  gathering  than  there  was 
on  that  day  at  Charleston,  or  a  more  fixed  determination  to  vote  every  man  his 
ticket.  My  observation  was,  after  the  tickets  were  issued  they  remained  together 
and  a  large  majority  of  them  went  from  where  they  received  their  tickets  and  de- 
posited them  at  the  window  under  my  observation.  I  was  watching  at  the  time.  I 
can't  swear  to  any  thing  positive  that  I  saw  that  was  wrong.  But  judging  from  the* 
number  of  colored  men  that  voted  and  the  number  of  white  men,  observing  closely 
each,  I  don't  believe  there  were  3  out  of  the  entire  colored  vote  that  voted  the  Dem- 
ocratic ticket. 


428  CHALMERS    VS.   MORGAN. 

Anthony  Pollard,  being  duly  sworu,  testified  as  follows: 

Int.  1,  What  is  your  name,  color,  and  occupation? — Ansr,  1.  A.  P.  Pollard;  farm- 
ing and  teaching. 

Int.  2.  In  what  precinct  did  yon  live  at  the  elsction  of  1888  ? — Ans.  2d.  Charleston 
beat. 

Int.  3.  What  is  your  politics  f — Ans.  3d.  Republican. 

Int.  4.  State  whether  or  not  you  took  an  active  part  in  the  election  of  1888  ? — Ans. 
4th.  I  made  no  canvass,  but  gave  out  tickets  and  talked  about  election  a  great  deal 
on  the  day  of  the  election. 

Int.  5.  State  whether  or  not  you  know  about  the  number  of  colored  voters  at  this 
precinct,  and  whether  or  not  they  generally  voted,  and  about  how  many  voted. — 
Ans.  5th.  I  think  there's  about  two  hundred  and  some  odd.  I  think  there  was  about 
180  or  190  tickets  issued  on  day  of  election  at  this  place.     I  mean  Republican  tickets. 

Int.  6.  About  how  many  colored  men  voted  in  this  precinct  ?  Do  you  know  whether 
all  to  whom  tickets  were  given  voted? — Ans.  6.  I  don't  know  whether  all  the  tickets 
given  out  were  voted  or  not. 

Int.  7.  Were  you  at  the  polls  during  the  day  of  election ;  if  so,  state  if  you  saw  any 
conduct  of  the  officers  of  the  election  that  indicated  unfairness  ? — ^Ans.  7.  Yes,  I  was 
here  at  the  election.     Nothing  that  indicated  unfairness. 

Int.  8.  Did  you  see  any  one  exchange  the  tickets  given  in  by  the  voters? — Ans.  8.  I 
did  not. 

Int.  9.  Do  you  know  Gren.  J.  R.  Chalmers ;  if  so,  state  whether  or  not  he  was  gener- 
ally popular  with  the  colored  people? — Ans.  9.  I  know  him  when  I  see  him.  I  think 
he  is  generally  popular  with  the  white  and  colored  people  about  Charlestou. 

Int.  10.  State  if  you  ever  heard  any  objection  urged  by  the  colored  people  against 
Gen.  Chalmers  on  account  of  his  war  record  ? — Ans.  10.  Not  in  this  last  campaign. 

Int.  12.  State  if  you  know  which,  Morgan  or  Chalmers,  got  the  majority  of  the  vote 
cast  at  this  box. — Ans.  12.  I  don't  think  there  was  much  difference,  but  the  Republi- 
cans generally  carry  this  box  by  a  small  majority.  I  think  Chalmers  carried  this  box 
by  a  small  majority. 

Cross-examination : 

Interrog.  1.  Are  you  well  acquainted  with  the  voters  of  this  county,  both  white 
and  black,  and  have  you  been  a  candidate  several  times  in  this  county  ? — Ans.  Ist. 
Pretty  generally  with  them.     Once  a  candidate  for  supervisor. 

Interrog.  2.  Have  you  for  several  years  past  very  well  understood  the  political 
workings  of  this  county  ? — Ans.  2d.  I  have  been,  but  not  lately.  < 

Interrog.  3.  Was  the  Republican  party  in  this  county  well  organized,  or  not,  in 
the  year  1888,  and  if  so,  state  the  nature  and  extent  of  such  organization  ?— Aus.  3. 
The  Republicans  in  this  county  were  not  so  well  organized,  but  talked  about  politi- 
cal matter  generally. 

Interrog.  4.  What  portion  of  the  colored  people  who  voted  at  this  place  voted  the 
Democratic  ticket  for  J.  B.  Morgan  ?  Give  your  best  judgment. — Ans.  4.  I  think 
those  who  have  been  in  the  habit  of  voting  Democratic  ticket  heretofore  voted  that 
way  in  last  election,  except  one  or  two. 

Interrog.  5.  What  portion  of  the  colored  voters  in  this  precinct  and  in  this  county 
failed  to  go  to  the  polls  and  vote  in  Congressional  election  here  in  1888? — Ans.  5. 
About  one-fourth  failed  to  turn  out  in  county,  but  at  this  box  there  was  a  larger 
tnrn-out  than  usual  in  last  campaign. 

Robert  B.  Buckley,  being  duly  sworn,  testified  as  follows : 

Int.  1.  State  your  name,  age,  color,  and  politics. — Ans.  1.  Robert  B.  Buckley ;  about 
34  years;  colored  man  ;  Republican. 

Int.  2.  In  what  voting  precinct  did  you  vote  at  the  election  of  1888  ? — Ana.  2. 
Charleston  precinct. 

Int.  3.  Did  you  vote  at  the  last  election  ;  if  so,  state  at  what  place  ? — Ans.  3.  Yes, 
sir;  I  voted  at  Charleston  precinct. 

Int.  4.  Do  you  know  Gen.  J.  R,  Chalmers ;  if  so,  state  whether  or  not  he  was  pop- 
ular with  the  colored  voters? — Ans.  4.  Yes,  sir;  yes,  sir. 

Int.  5.  Was  the  Republican  party  organized  during  the  canvass  and  election;  if  so, 
state  how  it  was  organized,  and  whether  or  not  there  was  any  concert  of  action  and 
agreement  among  them  ? — Ans.  5.  They  were  not  organized  in  clubs,  but  had  a  gen- 
eral understanding  who  they  would  vote  for. 

Int.  6.  Was  there  a  general  turn-out  of  the  Republican  voters  at  your  box  ;  if  so, 
was  it  in  pursuance  to  the  agreement  among  them  ? — Ans.  6.  Yes,  there  was  a  gen- 
,eral  turn-out ;  yes,  sir. 

Int.  7.  Were  you  one  of  the  officers  of  the  election  ?  If  so,  state  what  was  your 
duty. — Ans.  7.  I  was  an  inspector  of  the  election. 

Int.  8.  How  many  Republicans  were  officers  at  your  box  ? — Ans.  8.  One. 

Int.  9.  State  what  was  assigned  you  to  do  while  the  voting  was  going  on. — Ans,  9. 


CHALMERS   VS.    MORGAN.  429 

Part  of  the  time  in  the  morning  I  was  to  hunt  names  on  the  poll-books ;  balance  of 
the  time  was  sitting  there  looking  on. 

Int.  10.  State  whether  or  not  you  was  in  the  position  to  detect  any  fraud,  if  there 
was  any,  and  if  you  detected  any  fraud ;  if  so,  what  was  it ;  state  in  full. — Ans.  10. 
No,  sir;  I  was  not,  I  was  looking  over  the  book.  No  fraud  was  perpetrated,  so  far 
as  I  know. 

Int.  11.  Do  you  know  how  many  Republican  votes  were  polled  at  your  box  ?  If  so, 
state  how  many,  as  far  as  you  know. — Ans.  11.  No,  sir;  don't  know  how  many  there 
were. 

Cross-examination : 

Interrog.  1.  Was  the  election  for  Congressman  held  here  in  1888  peaceable,  quiet, 
and  fair  over  the  county  generally,  so  far  as  you  know  ? — Answer  1.  So  far  as  I  know, 
it  was. 

Interrog.  2.  Do  you  know  Judge  J.  B.  Morgan,  and  is  he  popular  or  unpopular 
with  the  colored  voters  of  this  county  and  this  precinct? — Answer  2.  Yes,  I  know 
him ;  if  he  is  popular  I  don't  know  it. 

Interrog.  3.  Do  you  know  that  he  is  unpopular  with  the  colored  voters? — Ans.  3. 
Personally  I  don't  think  him  unpopular;  politically  I  never  heard  any  one  decide  to 
vote  for  him. 

Interrog.  4.  Do  you  not  know  that  some  colored  people  voted  for  J.  B.  Morgan 
at  this  place  ? — Answer  4.  No,  sir ;  I  do  not  know  it.  No  one  told  me  that  they  voted 
for  him. 

Interrog.  5.  Have  you  ever  heard  that  some  colored  people  voted  for  J.  B.  Mor- 
gan at  this  voting  place  at  the  said  election? — Ans.  5.  Yes,  sir;  I  heard  the  boys 
say  one  voted  for  him,  but  he  denied  it. 

Interrog.  6.  Have  you  not  heard,  and  is  it  not  your  understanding  and  informa- 
tion, that  there  are  many  colored  people  who  generally  vote  the  Democratic  ticket  at 
this  place  ? — Anr.  6.  I  have  heard  of  four  or  five. 

Interrog.  7.  What  is  your  opinion  as  to  the  number  of  Democratic  tickets  for 
J.  B.  Morgan  cast  at  said  election  at  this  voting  place  by  the  colored  voters  ? 

My  opinion  is  about  4,  5,  or  6— somewhere  about  there. 

Interrog.  8.  How  many  inspectors  of  election  were  acting  as  such  at  this  place 
with  you  ? — Ans.  8.  Three  of  ns;  two  others. 

Interrog.  9.  When  you  were  looking  over  the  poll-book  at  said  election,  was  not 
that  necessary  to  be  done  by  one  of  the  inspectors  to  carry  on  the  election  according 
to  law  of  this  State,  and' were  not  the  other  ofiQcers  at  said  election  then  busy  in  their 
official  duty  as  to  the  election? — Ans.  9.  Yes,  sir;  yes,  sir. 

Interrog.  10.  When  you  were  not  looking  over  the  poll-books  were  you  not  in  po- 
sition and  have  good  opportunity  to  detect  any  fraudulent  conduct  on  the  part  of  the 
other  officials  of  said  election  ? — Ans.  10.  Yes,  sir. 

In  opposition  to  this  the  witnesses  for  contestee  undertake  to  show 
that  more  negroes  than  are  stated  by  the  Republican  witnesses  voted 
the  Democratic  ticket.  Dogan  says :  "  I  do  not  know  how  many  col- 
ored voters  voted  the  Democratic  ticket  in  this  county  in  1888,  but  do 
know  that  some  of  the  best  colored  men  in  the  county  are  Democrats 
and  belong  to  Democratic  clubs "  (Rec,  p.  842).    Xeely  says: 

Ans.  32.  1  don't  know  exactly  number  of  col.  voters  who  voted  the  Democratic 
ticket  in  the  county,  but  can  safely  testify  that  at  least  150  or  175  voted  that  ticket 
in  the  county,  and  at  least  35  or  40  at  this  box ;  I  know  this  from  personal  observation 
and  my  acquaintance  with  the  col.  voters  and  by  giving  out  Democratic  tickets  to 
them,  and  many  of  them  voted  the  Democratic  ticket  openly  and  above  board.  (Rec, 
p.  840.) 

Polk  says: 

Answer  to  question  32.  I  think  at  least  forty  colored  votes  was  polled  for  Judge  J. 
B.  Morgan  at  Charleston  precinct.  As  to  the  other  precincts  I  am  not  able  to  say.  I 
know  it  from  personal  observation  and  their  statements  to  me  as  to  how  they  would 
vote;  a  good  many  voted  open  tickets  for  Judge  Morgan.     (Rec,  p.  844.) 

But  not  a  single  negro  was  called  in  this  county  to  prove  that  he  voted 
the  Democratic  ticket,  and  the  color  of  the  voters,  as  shown  in  the  proof 
of  those  who  voted,  there  were  832  colored  and  783  white. 

Again,  at  Charleston  the  proof  shows  109  whites  and  155  colored 
voted.  Three  of  the  whites  voted  for  Chalmers,  and  if  we  add  to  the 
106  white  men  40  colored,  which  is  the  most  extravagant  guess  made 
by  any  Democratic  witness  as  to  the  colored  Democratic  vote  at  this 


430 


CHALMERS  VS.  MORGAN. 


box,  it  would  make  but  143  where  the  commissioners  returned  180  for 
Morgan.  A  further  gross  fraud  is  shown  at  this  box,  in  this :  The  pre- 
cinct officers  returned  but  162  for  Morgan,  while  the  commissioners  re- 
turned 180  (see  Rec.  pp.  462  and  745). 

Countirg  the  vote  for  Chalmers  here  as  proven  by  the  Republican 
witnesses  and  the  count  will  then  stand : 


Chalmers. 

Morgan. 

Forward 

8,278 
166 

8,587 

Charleston: 

Add 

Deduct 

180 

Deduct  unexamined  boxes: 

8,433 
232 

8,407 
605 

De  Soto  County 

8,201 
312 

7,802 
640 

La  Fayette  County .................................... 

7,889 
268 

7,262 
860 

7,621 
400 

6,402 
622 

7,221 
313 

5,780 
540 

Tate 

6,908 
348 

5,240 
944 

6,560 
380 

4.296 

6,940 

2,G44 

Or  if  Tallahatchie  County  be  rejected  the  count  will  then  stand — re- 
turning to  the  last  count  in  La  Fayette : 


Chalmers. 


Morgan. 


Forward 

Tallahatchie  out,  deduct 

Deduct  unexamined  boxes: 

Benton  County 

DeSoto  County 

La  Fayette  County^ ••... 

Marshall  County 

Pauola  County 

Tate  County... 

Add  rejected  votes  in  Benton,  DeSoto,  Marshall,  Panola,  and  Tate 

Plurality  for  contestant 


7,7f 


7,767 
232 


7,535 
312 


7,223 
268 


6,955 
400 


6,555 
313 


6,242 
348 


5,894 
380 


6,274 


2,427 


8,979 
1,021 


7,958 
605 


7,353 
540 


6,813 
860 


5,953 


5,331 
540 


4,791 
944 


3,847 


CHALMERS    VS.    MORGAN. 
REG  APITUL  ATIO  N. 


431 


Chalmers. 

Morgan. 

Aa  retnmed . .. 

5,817 
Deduct       77 

13,978 
Deduct       101 

Benton  County: 

5.740 
Add...       48 

13,877 

Tin  Soto  Connty : 

5,788 
Add...      142 

13,877 

Hesbitts 

5,930 
Deduct     105 

13, 621 
Deduct       130 

5,825 
Add...     182 

13,491 
Add              47 

Hernando  Dejwt 

6,007 
Deduct       32 

13, 538 
Deduct       134 

5,975 
Add  ..       97 

13,404 
Add              69 

Hernando  Court-House 

6,072 
Add...       49 

13,473 
Deduct        49 

Loves ........................................ 

6,121 
Add...       52 

13,424 
Deduct       162 

Oak  Grove 

6,173 
Add...      148 

13,262 
Deduct       154 

Endora 

6, 321 
Deduct     136 

13, 108 
Deduct       200 

Laaderdale 

6,185 
Add..       33 

12,  908 
Deduct       111 

Stewarts 

6,218 
Add...       73 

12,797 

lugrama 

6,291 
Add  ..     118 

12,797 

Olive  Branch 

6,409 
Add  ..      100 

12, 797 

Marshall  Connty : 

East  Holly  Springs 

6,509 
Add...      128 

12,  612 
Deduct       350 

6,637 
Add...       30 

12,  202 

RedBank 

6,667 
Add...       41 

12,233 
Deduct       11  "5 

6,708 
Add...       36 

12, 117 

"WallHiU 

6, 743 
Add...       27 

11,816 
Deduct       119 

6,770 
Add...       48 

11,  696 
Deduct       121 

Law'sHill 

6,818 
Add...      24 

11,  575 

6,842 
Add...       40 

11,481 
Deduct       162 

Hadsonville 

6,882 
Add...       14 

11,  319 
Deduct       142 

Como ., 

6,896 
Add...       60 

11, 177 
Deduct       306 

6,956 

10,872 

432 


CHALMERS   VS.    MORGAN. 
RECAPITULATION  —Continued. 


Chalmers. 


Morgan. 


Panola  Connty — continued : 
Spring  Port 


liOngtown ...... . 

Bates  ville 

Pleasant  Mount. 


Tat>e  Connty: 
■Taylor's  . 


Coldirater. 
Senatobia. . 
Shirods . . . 
Stray  horn . 


La  Fayette  County : 
Abbeville 


College  Hill 

North  Oxford 

South  Oxford 

Tallahachie  County,  throw  out  the  county. 

Benton  County,  unexamined  boxes 

De  Soto  County,  unexamined  boxes  ...... . 

La  I'ayette  County,  unexamined  boxes  -... 

Marshall  Connty,  unexamined  boxes 

Panola  Connty,  unexamined  boxes . 

Tate  Connty,  unexamined  boxes 


Benton  County  . .  ) 

Do  Soto  County.. 

Marshall  County.  >  Add  rejected  rote . 

Panola  County. . .  I 

Tate  County J 


Minority  for  Chalmers . 


Add. 


Deduct        79 


Add. 


6,961 
40 


10, 777 
Deduct       155 


7,001 
Add...       68 


10,618 
Deduct       245 


7,009 
Deduct       97 


10,373 
Deduct       126 


6,972 
Add...     145 


10, 247 
Add...         30 


Add. 


7,117 
149 


10,  277 
Deduct       275 


7,266 
Deduct       44 


10,  002 
Deduct       318 


7,222 
Deduct       20 


9,684 
Deduct       166 


7,202 
Deduct       16 


7,186 
Add...       40 


7,226 
Add...      174 


7,400 
Add...      190 


7,590 
Add...      179 


7,769 
Deduct        2 


7,767 
Deduct     232 


7. 535 
Deduct     312 


9,518 
Deduct       223 


9,295 
Deduct        31 


9,264 
Deduct       285 


Deduct 


8,979 
1, 021 


Deduct 


7,958 
605 


Deduct 


7,  353 
540 


7,223 
Deduct     268 


6,955 
Deduct     400 


6,555 
Deduct     313 


Deduct 


6,813 
860 


Deduct 


5,953 
622 


Deduct 


5,331 
540 


CHALMEKS    VS.    MORGAN.  433 

From  tbis  it  will  be  seen  that  if  the  unexamined  boxes  be  rejected 
and  the  rejected  voters  outside  of  La  Fayette  County  be  counted  for 
contestant,  it  will  give  him  60G  plurality  upon  the  count  as  admitted  to 
be  made  by  the  majority  report.  If  they  be  added  to  the  count,  as 
made  by  this  report,  it  gives  to  the  contestant  2,427  plurality  by  the 
couut  leaving  out  Tallahatchie  County,  and  2,644  if  Charleston  box,  in 
Tallahatchie  County,  be  counted  according  to  the  rule,  so  frequently 
held  by  this  committee,  of  rejecting  the  vote  when  fraud  is  proved,  and 
counting  only  the  vote  as  proved  by  the  ticket  distributers  to  have 
been  issued  and  voted.  We  have  given  our  count  in  detail,  and  we 
append  a  tabulated  recapitulation  for  easy  reference,  and  we  challenge 
any  one  to  show  that  in  making  it  we  have  departed  at  any  box  from 
the  rules  laid  down  in  Featherstone  v.  Cate,  Threet  v.  Clarke,  or  McDuffy 
v.  Turpin.  The  committee  acted  on  these  rules  in  all  these  cases,  and 
we  see  no  reason  why  we  should  depart  from  them  in  this  case. 

When  the  majority  of  the  committee  found  fraud  enough  at  23  boxes 
to  reduce  the  returned  plurality  6,122  votes,  can  it  be  possibble  that  a 
further  examination  would  not  have  shown  further  fraud  at  the  unex- 
amined boxes  sufficient  to  give  contestant  even  a  greater  majority  than 
is  here  counted  for  him. 

For  this  House  to  declare  the  contestee  legally  elected,  after  all  the 
fraud  shown  in  this  report  and  the  first  sixteen  pages  of  the  majority 
report,  with  which  we  agree,  will  be  to  uphold  and  maintain  a  state  of 
things  disgraceful  to  our  civilization  and  to  encourage  its  continuance 
and  re[)etition  so  that  it  will  grow  with  their  growth  and  strengthen 
with  their  strength  until  it  becomes  imbedded  in  the  politics  of  that 
section,  never  to  be  eradicated  except  by  revolution. 

Therefore,  in  consideration  of  the  premises,  the  minority  recommend 
the  following  resolutions : 

Resolved,  That  James  B.  Morgan  was  not  elected  a  Eepresentative  in 
the  Fifty-first  Congress  from  the  second  Congressional  district  of  Mis- 
sissippi, and  is  not  entitled  to  a  seat  therein. 

Resolved^  That  James  R.  Chalmers  was  elected  a  Representative  in 
the  Fifty -first  Congress  from  the  second  Congressional  district  of  Mis- 
sissippi, and  is  entitled  to  a  seat  therein. 

H.  Mis.  137' 28 


JOHN  M.  LANGSTON  vs.  E.  0.  VENABLE. 

FOURTH  VIRGINIA. 


Contestant  charged  that  by  the  false  and  fraudulent  returns  of  the 
election  officers  in  certain  precincts  he  had  been  deprived  of  the  benefit 
of  a  large  number  of  votes  legally  cast  for  him.  This  charge  the  com- 
mittee find  sustained  by  the  evidence  as  to  a  suflicient  number  of  pre- 
cincts to  overcome  the  plurality  returned  for  contestee,  and  show  a 
plurality  for  contestant.  The  minority  find  the  evidence  insufficient  to 
sustain  the  charges.  (See  minority  report,  page  469.)  The  resolutions 
presented  by  the  committee  were  adopted  September  23,  1890,  the  first 
by  a  vote  of  151  to  1  (the  Speaker  "counting  a  quorum")  and  the  sec- 
ond without  division,  and  Mr.  Langston  was  sworn  in.  The  debate  will 
be  found  on  pages  9822  to  10339  of  the  Record.  (The  case  was  under 
consideration  most  of  the  time  from  September  6  to  September  23.) 

(1)  Irregularities.     Their  effect  on  the  yrima  facie  of  the  returns. 

Mere  irregularities  in  the  conduct  of  the  election,  where  it  does  not 
appear  that  the  legally  expressed  will  of  the  voter  has  been  suppressed 
or  changed  are  insufficient  to  impeach  officially  declared  votes.  But  a 
succession  of  unexplained  irregularities  and  disregard  of  law  on  the 
part  of  intelligent  officials  removes  from  the  ballot-box  and  the  official 
returns  that  sacred  character  with  which  the  law  clothes  them,  and 
makes  less  conclusive  evidence  sufficient  to  change  the  burden  upon  the 
party  who  maintains  the  legality  of  the  official  count. 

(2)  Change  of  judges  of  election. 

Unwarranted  changes  in  judges  of  election,  made  without  reason  or 
excuse,  only  a  few  days  before  the  election,  are  suspicious  circum- 
stances, but  standing  alone,  and  not  supported  by  evidence  of  fraud  at 
the  polls,  affecting  the  result  of  the  election,  are  disregarded,  and  the 
certified  returns  permitted  to  stand  as  made. 

(3)  Irregularity.    In  one  portion  of  a  return  does  not  affect  the  rest. 
Where  a  precinct  return  was  irregular  as  to  votes  cast  for  Presiden- 
tial electors,  and  had  been  rejected  entire  by  the  county  commissioners, 
the  committee  counted  the  vote  for  Representative  in  Congress,  which 
was  regularly  returned. 

(4)  Excessive  ballots. 

Where  there  was  an  excess  of  26  ballots  in  a  vote  of  about  200,  and 
the  count  was  conducted  without  witnesses,  and  under  suspicious  cir- 

435 


436  LANGSTON    VS.    VENABLE. 

cumstances,  the  committee  held  that  this  was  suflQcient  to  reject  the 
return. 

(5)  Unsigned  return. 

4^11  unsigned  statement  counted  as  a  return  by  the  county  commis- 
sioners was  rejected  by  the  committee. 

(6)  Suppression  of  testimony.     By  dilatory  cross-examination. 

Where  in  one  precinct  contestant  began  taking  testimony  twenty- 
three  days  before  the  expiration  of  his  time,  in  pursuance  to  a  notice 
containing  the  names  of  292  persons,  who,  it  is  claimed,  would  have 
testified  that  they  voted  for  him  in  said  precinct,  and  the  first  two  wit- 
nesses, the  ticket  distributers,  were  cross-examined  by  the  contestee 
throughout  the  entire  twenty-three  days,  held,  that  the  contestee  is 
estopped  from  claiming  that  the  evidence  of  these  ticket  distributers  is 
insufficient  unless  corroborated  by  that  of  the  voters  themselves,  he 
having  by  his  own  act  prevented  the  latter  testimony  from  being  taken. 

(7)  Return  overthrown  hy  testimony  of  voters. 

Where  contestant  was  returned  as  having  received  139  votes  in  a 
precinct,  and  283  voters  testified  to  having  voted  for  him,  and  the  tes- 
timony of  the  ticket  distributers  indicated  a  still  larger  number,  held, 
that  this  is  sufficient  to  reject  the  return,  and  count  only  such  votes  as 
are  proved  outside  the  return. 

(8)  Votes.    JVo*  cast. 

Where  there  were  two  lines  of  voters,  one  white  and  one  colored,  and 
the  judges  required  them  to  vote  alternately,  and  the  colored  line 
being  much  the  longer,  there  was  still  a  large  number  of  voters  in  it 
who  had  not  voted  at  the  close  of  the  polls,  and  the  testimony  showed 
that  most  of  them  were  intending  to  vote  for  contestant,  but  they  them- 
selves were  not  called  as  witnesses,  held,  that  their  votes  could  not  be 
counted  for  contestant,  but  that  if  their  number  had  equaled  or  ex- 
ceeded the  plurality  returned  for  the  contestee  so  that  the  legality  of  the 
election  depended  upon  them,  it  would  invalidate  his  election  with  no 
further  proof  and  make  a  new  election  necessary. 

(For  ruling  under  a  different  state  of  facts,  see  Waddill  vs.  Wise, 
mpra.) 

(9)  Return.     When  rejected  only  votes  proved  counted. 

Where  the  returns  were  rejected  for  fraud,  and  the  only  votes  proved 
aside  from  the  returns  were  for  contestant,  held,  that  no  others  could 
be  counted,  for  "it  is  evident  that  giving  to  contestee  the  vote  not  ac- 
counted for  would  be  a  direct  encouragement  to  election  frauds,  as  it 
would  give  him  the  benefit  of  every  fraudulent  vote  which  his  friends 
had  made  it  impossible  for  the  opposition  to  expose,  even  after  the 
j)roof  clearly  established  fraud  to  such  an  extent  as  to  destroy  abso- 
lutely the  integrity  of  the  official  returns.  In  no  case  has  such  a  rule 
been  adopted." 


REPOHT. 


June  16, 1890. — Mr.  Haugen,  from  the  Committee  on  Elections,  sub- 
mitted the  following  report: 

The  official  returns  from  the  Fourth  Congressional  district  of  Virginia 
of  the  election  of  Representative  in  Congress,  on  the  6th  of  November, 
1888,  give  ^.  C.  Venable  13,298,  John  M.  Langston  12,657,  and  K.  W. 
Arnold  3,207  votes,  a  plurality  of  041  votes  of  Venable  over  Langston. 

The  contestant,  Mr.  Langston,  claims  that  this  is  not  the  true  vote 
of  the  district,  but  is  the  result  of  fraud  and  corruption  on  the  part  of 
the  election  officers  in  certain  counties  and  at  certain  precincts  specified 
in  his  notice  of  contest,  and  that  had  the  vote  been  honestly  received 
and  honestly  returned  in  accordance  with  the  laws  of  Virginia,  a  clear 
plurality  over  Mr.  Venable  would  have  appeared  for  him — Langston. 

The  committee  has  selected  from  the  voluminous  record  (which  con- 
tains some  1,200  pages  of  closely  printed  matter,  much  of  it  irrelevant 
and  tedious  cross-examination)  a  few  precincts  which  appear  to  the 
committee  to  sustain  the  charges  of  the  contestant  and  completely 
overcome  the  plurality  for  contestee  on  the  face  of  the  returns. 

Mere  irregularities  in  the  conduct  of  the  election,  where  it  does  not 
appear  that  the  legally  expressed  will  of  the  voter  has  been  suppressed 
or  changed,  is  insufficient  to  impeach  officially  declared  votes  and 
have  been  disregarded.  But  a  succession  of  unexplained  irregulari- 
ties and  disregard  of  law  on  the  part  of  intelligent  officials  removes 
from  the  ballot-box  and  the  official  returns  that  sacred  character  with 
which  the  law  clothes  them,  and  makes  less  conclusive  evidence  suffi- 
cient to  change  the  burden  upon  the  party  who  maintains  the  legality 
of  the  official  count. 

Paine  on  Elections,  section  596,  says : 

While  it  is  well  settled  that  mere  ueglect  to  perform  directory  requirements  of  law, 
or  performance  in  a  mistaken  manner  where  there  is  no  bad  faith  and  no  harm  has 
accrued,  will  not  justify  the  rejection  of  an  entire  poll,  it  is  equally  well  settled  that 
when  the  proceedings  are  so  tarnished  by  fraudulent,  negligent,  or  improper  conduct 
on  the  part  of  the  officers  that  the  result  of  the  election  is  rendered  uureliable,  the  en- 
tire returns  will  be  rejected  and  the  parties  left  to  make  such  proof  as  they  may  of  the 
votes  legally  cast  for  them. 

The  laws  of  Virginia  recognize  the  weaknesses  of  human  nature  and 
the  necessity  of  having  friends  of  the  candidates  representing  different 
views  u[)on  the  elect  ion  boards  to  guard  against  the  temptation  to  vfhich 
a  board  whose  members  all  affiliate  with  one  political  party  might  be  sub- 
ject. 437 


438  LANGSTON   VS.   VENABLE. 

The  following  provisions  of  the  Virginia  law  are  referred  to  in  con- 
nection with  the  case : 

Sec.  117.  How  judges  of  election  appointed;  failing  to  attend,  who  to  act. — It  shall 
be  the  duty  of  the  electoral  board  of  each  city  and  county,  prior  to  the  first  day 
of  March  iu  each  year,  to  appoint  three  competent  citizens,  being  qualified  voters, 
who  shall  constitute  the  judges  of  election  for  all  elections  to  be  held  iu  their 
respective  election  districts,  for  the  term  of  one  year,  dating  from  their  appoint- 
ment, and  who  shall  have  power  to  appoint  two  clerks  for  each  place  of  voting  at 
such  election,  to  whom  shall  be  administered  by  the  judges,  or  either  ot  them,  the 
same  oath  as  that  taken  by  the  said  judges.  Whenever  it  is  possible  to  do  so,  the 
jiersons  so  appointed  judges  of  election,  shall  be  chosen  for  each  voting  place 
from  persons  known  to  belong  to  dift'erent  political  parties,  each  one  of  whom 
shall  be  able  to  read  and  write.  The  members  of  any  electoral  board  who  shall 
willfully  fail  to  comply  with  this  requirement,  shall  be  deemed  guilty  of  misde- 
meanor, and  on  conviction  thereof  shall  be  fined  not  less  than  one  hundred  nor 
more  than  five  hundred  dollars ;  but  no  election  shall  be  deemed  invalid  when 
the  judges  shall  not  belong  to  difi'erent  political  parties,  or  who  shall  not  possess 
the  above  qualifications.  Should  any  judge  of  election  fail  to  attend  at  any  place 
of  voting  for  one  hour  after  the  time  prescribed  by  law  for  opeuiug  the  polls  at 
such  election,  it  shall  be  lawful  for  the  judge  or  judges  in  attendance  to  select  from 
among  the  bystanders  one  or  more  persons  possessing  the  qualifications  of  judges  of 
election,  who  shall  act  as  judge  or  judges  of  such  election  and  who  shall  have  all  the 
powers  and  authority  of  judges  appointed  by  said  electoral  board :  Provided,  however, 
That  if  the  judge  or  judges  present  have  information  that  the  absent  judge  or  judges 
will  not  attend,  he  or  they  need  not  wait  for  the  expiration  of  an  hour,  or  any  other 
time.  Should  all  the  judges  appointed  for  any  place  of  voting  fail  to  attend  at  the 
place  of  voting  for  one  hour  after  the  time  prescribed  by  law  for  opening  the  polls  at 
such  electiou,  it  shall  be  the  duty  of  any  justice  of  the  district  in  which  the  election 
is  held,  who  shall  be  applied  to  for  that  purpose,  or  the  mayor,  if  the  electiou  is  in  any 
electiou  district  is  in  any  town  or  city,  toappointthree  judges  of  election  for  such  elec- 
tion district,  who  shall  possess  the  same  qualifications  and  have  the  same  powers  as 
judges  appointed  by  an  electoral  board.  Should  no  judges  of  election  be  appointed 
for  any  county,  city,  or  place  of  voting  therein,  or  if  appointed  they  neglect  or  refuse  to 
act  for  one  hour  after  the  time  prescribed  by  law  for  opening  the  polls  at  such  election, 
it  shall  be  lawful  for  any  three  qualified  voters  of  the  district,  who  shall  be  present  and 
willing  to  act,  upon  taking  the  oathprescribedfor  judges  of  election,  to  proceed  to  hold 
conduct,  and  certify  the  electiou  in  the  manner  provided  in  this  chapter,  and,  for  that 
purpose,  shall  have  all  the  powers  and  authority  of  judges  appointed  by  an  electoral 
board. 

Sec.  3849.  Judge,  clerk,  etc.,  failing  to  attend  election,  hoio  punished. — If  any  judge, 
clerk,  or  commissioner  of  election  fail  to  attend  at  the  time  and  place  appointed  for 
such  election,  or  to  perform  any  of  the  duties  imposed  on  him  by  law,  without  good 
and  sufficient  reason,  he  shall  be  fined  not  less  than  ten  nor  more  than  one  hundred 
dollars. 

Sec.  3850.  Officers,  etc. ,  neglecting  his  duty  in  regard  to  election,  or  doing  it  corruptly,  how 

fmnished. — If  any  oiSScer,  messenger,  or  other  person  on  whom  any  duty  is  enjoined  by 
aw  I'elative  to  general  or  special  elections,  be  guilty  of  any  willful  neglect  of  such 
duty,  or  of  any  corrupt  couduct  in  the  execution  of  the  same,  he  shall  be  fined  not 
exceeding  five  hundred  dollars,  and  confined  in  jail  not  exceeding  one  year;  and  if 
any  ofiicer  be  convicted  as  afoi'esaid  he  shall  be  removed  from  office. 

It  is  very  evident  from  the  last  two  sections  quoted  that  the  law  in- 
tended that  no  change  should  be  made  in  the  legally  constituted  board 
except  for  most  urgent  reasons,  and  that  men  appointed  before  the  com- 
mencement of  a  heated  campaign  could  alone  be  trusted  with  the  im- 
portant duties  of  impartially  recording  the  votes  of  self-governing 
freemen. 

Sec.  12*^.  How  polls  closed  when  votes  canvassed  and  result  declared. — As  soon  as  the 
polls  are  finally  closed  (of  which  closing  proclamation  shall  be  made  by  the  judges 
fifteen  minutes  previous  thereto),  the  judges  shall  immediately  proceed  to  canvass  the 
vote  given  at  such  election,  and  the  said  canvass  shall  be  coutiuued  without  adjourn- 
ment until  completed,  and  the  result  thereof  declared. 

Skc.  129.  How  rotes  canvassed. — The  canvass  shall  commence  by  taking  out  of  the 
box  the  ballots  unopened  (except  so  far  as  to  ascertain  whether  each  ballot  is  sinsjle), 
and  gounting  the  same  to  ascertain  whether  the  number  of  ballots  corresponds  with 
the  number  of  names  on  the  poll  books  ;  and  if  two  or  more  separate  ballots  are  found 
so  folded  together  as  to  present  the  appearance  of  a  single  ballot,  they  shall  be  laid 
aside  until  the  count  of  the  ballot  is  completed.     If  upon  a  comparison  of  the  said 


LANGSTON   VS.   VENABLE.  439 

count  with  the  number  of  names  of  electors  on  the  poll-books,  it  appears  that  the 
two  ballots  thus  folded  tog«ither  were  cast  by  the  same  elector,  they  shall  be  de- 
stroyed. If  the  ballots  in  the  balloc-box  are  still  found  to  exceed  the  number  of 
names  on  the  poll  books,  all  of  the  ballots  shall  be  replaced  in  the  ballot-box;  and 
after  the  same  shall  be  well  shaken,  oueof  the  judges  of  the  election  being  blindfolded, 
shall  draw  therefrom  a  suthcient  number  of  ballots  to  reduce  the  same  to  a  number 
equal  to  the  number  of  names  of  electors  on  the  poll-books.  The  number  of  ballots 
thus  being  made  to  agree  with  the  nnmber  of  names  on  the  poll-book,  the  books  shall 
be  signed  by  the  judges  and  attested  by  the  clerks,  and  the  number  of  names  thereon 
shall  be  set  down,  in  words  and  figures  at  the  foot  of  the  list  of  electors  on  the  poll- 
books,  and  over  the  signature  of  the  judges  and  attestations  of  the  clerks  in  the 
manner  and  form  prescribed  by  section  one  hundred  and  twenty.  Whenever  the 
number  of  ballots  is  reduced, -by  the  destruction  of  fraudulent  ballots,  below  the 
number  of  names  of  electors  on  the  poll-books,  the  cause  of  such  reduction  shall  be 
stated  at  the  foot  of  the  list  of  electors  on  the  poll-books,  before  the  same  are  signed 
and  attested  by  the  judges  and  clerks  respectively. 

Skc.  130.  How  votes  coiitded  and  relurtis  made. — After  the  poll-books  are  thus  signed 
and  attested,  the  judges  shall,  if  desired,  in  the  presence  of  not  exceeding  two  friends  of 
each  political  parti/  represented  by  the  persons  voted  for  in  such  election,  proceed  to 
count  and  ascertain  the  number  of  votes  cast  for  each  person  voted  for;  and  the  tick- 
ets or  ballots  shall  be  distinctively  read,  and  as  soon  as  read  and  canvassed  shall  be 
strung  by  one  of  the  judges  on  a  string,  and  the  clerks  shall  set  down  on  the  poll- 
books,  next  after  the  certilicate  of  the  judges  at  the  foot  of  the  list  of  electors  as  the 
returns  of  the  election,  the  name  of  every  person  voted  for,  written  at  full  length, 
the  office  for  which  such  person  received  such  votes,  and  the  number  of  votes  he  re- 
ceived ;  the  number  being  expressed  in  figures,  and  also  at  full  length  in  writing,  in 
accordance  with  the  form  prescribed  in  said  section  one  hundred  and  twenty;  which 
said  returns  when  so  made  out,  shall  be  signed  and  attested  as  provided  in  said  sec- 
tion, but  no  person  other  than  the  judges  of  the  election  shall  handle  the  ballots. 

There  are  numerous  instances  in  the  record  of  unwarranted  changes 
in  judges  of  election,  made  without  reason  or  excuse  only  a  few  days 
before  the  election.  These  are  suspicious  circumstances,  but  standing 
alone  and  not  supported  by  evidence  of  fraud  at  the  polls,  affecting 
the  result  of  the  election,  they  have  been  disregarded,  and  the  certi- 
fied returns  permitted  to  stand  as  made.  In  arriving  at  results,  spe- 
cific acts  at  certain  designated  precincts  are  alone  considered,  without 
unnecessarily  dwelling  on  the  general  political  and  race  features  of  the 
district. 

The  contestee  was  the  candidate  of  the  regular  Democracy.  The 
party  aifiliations  of  contestant,  as  far  as  this  contest  goes,  are  a  matter 
of  dispute.  The  contestee  maintains  that  he  (contestant)  ran  as  an  in- 
dependent candidate  in  opposition  to  the  regular  Eepublican  nominee, 
Mr.  Arnold.  Much  evidence  introduced  by  contestee  deals  with  the 
regularity  of  the  Eepublican  convention  and  the  questionable  features 
of  Mr.  Langston's  candidacy  as  viewed  from  a  strict  party  standpoint. 
The  question  which  the  committee  has  endeavored  to  solve  is:  Which 
candidate  received  a  plurality  of  the  votes,  and  not  who  was  the  regu- 
lar nominee?  Whom  did  the  voters  of  the  Fourth  district  of  Virginia 
elect  to  represent  them  in  the  Fifty  first  Congress'?  and  not  what  is  the 
percentage  of  white  and  colored  blood  in  the  veins  of  the  respective 
candidates.  That  there  was  marked  race  prejudice  in  localities  in  favor 
of  and  against  Mr.  Langston  is  apparent  from  the  evidence.  It  is  a 
matter  for  regret,  and  one  not  creditable  to  either  race.  Taking  the  evi- 
dence of  contestee's  witnesses  alone  and  it  clearly  establishes  the  prac- 
tically solid  support  of  Mr.  Langston  by  the  negroes  of  the  district. 
The  testimony  of  J.  H.  Van  Auken,  A.  W.  Harris,  W.  W.  Evans,  and 
other  witnesses  for  contestee  fully  proves  this.  Mr.  Van  Auken  testi- 
fies, on  pages  956  and  957  on  cross-examination,  as  follows : 

l:i'2d.  Question.  Then,  explain,  if  you  please,  how  with  Arnold,  the  regular  nomi- 
nee of  the  party,  supported  by  its  entire  organization  in  all  its  great  influence,  skill, 
management,  and  outlay,  Arnold  ran  so  [toorly  in  tiie  district  ? — Ans.  For  long  months 
prior  to  the  election,  and  for  loug  months  before  the  convention,  Mr.  Langston  had, 


440  LANGSTON   VS.    VENABLE. 

unopposed,  been  making  a  cauvass,  in  which  he  and  his  emissaries  had  insidiously 
and  industriously  played  upon  the  passions  and  prejudices  of  the  colored  people, 
basing  his  claims  to  Congress  largely  on  the  fact  that  the  negroes  outnumbered  tho 
M'hites  very  largely,  and  it  was  time  for  them  to  send  a  negro  to  Congress.  Ho 
aroused  even  tbe  women,  got  up  an  immense  religious  fervor  in  his  favor,  and  aroused 
the  prejudice  of  the  large  mass  of  the  unthinking  colored  people  to  such  an  extent  as 
I  never  witnessed  before  and  hope  never  to  witness  again.  It  was  at  white  heat  in 
Sussex  County  the  week  prior  to  the  election,  so  much  so  that  I  was  impressed  with 
the  opinion,  and  expressed  it,  that  they  would  not  then  even  listen  to  the  Lord  Jesus 
Christ,  much  less  vote  for  him,  if  he  were  a  white  man  and  appeared  against  Langstou. 
This  feeling  was  intensilied  largely  under  the  teachings  and  lea»lership  of  young 
colored  men,  who  had  no  memories  of  the  past,  which  enabled  them  to  properly  ap- 
preciate what  the  Republican  party  had  done  for  their  race,  hence  no  feeling  of 
gratitude. 

With  such  feeliug  in  the  district  the  election  of  Langston  was  cer- 
tainly to  be  expected. 

It  was  clear  that  Arnold,  who  was  receiving  the  support  of  the 
chairman  of  the  Eepublican  Congressional  district  committee  and  the 
party  organization,  as  far  as  the  chairman  was  able  to  control  it,  was 
virtually  distanced  in  the  race.  All  the  bitterness  engendered  against 
a  candidate,  rightfully  or  mistakenly,  accused  of  opposing  the  regular 
nominee  of  his  party,  appeared  in  opposition  to  contestant  by  many 
white  Republicans,  and  tended  to  draw  still  more  sharply  the  color  line. 

With  this  feeling  in  the  district,  the  fact  that  on  the  very  eve  of  the 
election  it  was  found  convenient  or  necessary  by  the  Democratic  elec- 
toral commissioners  to  remove  Eepublican  precinct  judges  of  election 
known  to  be  friendly  to  contestant,  and  filling  the  vacancies  with  his 
bitter  opponents,  without  any  reason  or  excuse  for  the  change,  is  a 
badge  of  fraud  which  can  not  be  overlooked.  This  question  will  be 
further  discussed  in  connection  with  each  precinct. 

The  census  returns  for  1880  give  a  total  population  in  this  district  of 
66,194  whites  and  102,071  colored. 

POARCH  AND  ROSS  ELECTION  DISTRICT,  BRUNSWICK  COUNTY. 

At  this  precinct  G9  votes  were  cast  for  Yenable  and  141  for  Langston, 
a  plurality  of  72  for  Langston.  This  vote  was  regularly  returned  to  the 
county  commissioners,  but  not  counted  for  the  alleged  reason  that  the 
same  returns  showed  certaiu  votes  cast  for  candidates  for  President  and 
Vice-President,  instead  of  for  electors  of  President  and  Vice-President. 
For  this  mistake  of  the  judges  not  only  the  electoral  vote  of  this  precinct 
was  thrown  out,  but  the  vote  for  every  other  candidate  upon  the  ticket 
was  rejected  by  the  county  commissioners.  This  fraud  now  stands 
confessed,  and  leaves  the  plurality  for  contestee  as  follows : 

Returned  plurality 641 

Less  plurality  for  Langston  at  Poarch  and  Ross  precinct 72 

569 
LUNENBURG  COUNTY — LEWISTON. 

The  regularlv  appointed  judges  at  this  precinct,  appointed  January 
27,  1888,  were  W.  P.  Austin,  B.  H.  May,  and  T.  C.  Fowlkes.  Austin 
and  May  were  present  at  the  opening  of  the  polls,  but  did  not  serve  as 
judges.  Mr.  May  acted  as  one  of  the  clerks.  The  acting  judges  were 
E.  G.  Bayne,  T.  F.  Robertson,  and  E.  C.  Goodwin.  All  the  judges  and 
clerks  and  the  United  States  supervisor  present  were  political  oppo- 
nents of  contestant.  With  the  exception  of  Mr.  Austin,  who  testi- 
fies that  on  account  of  illness  it  was  impossible  for  him  to  serve,  no 
explanation  is  given  for  this  sudden  change  of  judges  on  the  very 


LANGSTON   VS.   VENABLE.  441 

morning  of  election;  but  that  it  was  in  pursuance  of  prearranged  plans 
is  apparent  from  the  presence  of  Mr.  Kobertson  at  sunrise  on  the  morn- 
ing of  election  to  serve  as  judge,  he  living  some  8  or  9  miles  distant 
from  the  polls. 

J.  W.  Smith,  a  farmer  and  supervisor  of  Lewiston  district,  testifies  on 
pagS  814  of  the  record  as  follows : 

37th.  Was  Captain  Austin  around  the  polls  during  the  day?  And  if  so,  state  how 
often,  how  long  he  remained  at  the  polls,  and  what  he  was  doing  there. — Ans.  He 
was  around  the  polls  during  the  day.  I  don't  remember  how  often,  but  I  saw  him 
two  or  three  times  during  the  day  on  the  election  ground  working  in  the  interest  of 
Arnold. 

;J8th.  Name  the  U.  S.  supervisors  at  the  polls  at  said  precinct  on  election  day,  what 
political  party  they  belonged  to,  and  what  service  they  rendered.— Ans.  W.  J.  Bragg 
was  the  only  one  I  know  of.  He  is  a  Mahoneite,  and  staid  here  all  day  until  the  polls 
were  closed,  and  then  went  home  immediately  after  the  polls  were  closed. 

39th.  Were  all  the  judges  and  the  clerks  of  the  election  and  the  U.  S.  supervisor 
the  friends  or  opponents  of  Jno.  M.  Langston  for  Congress  ? — Ans.  They  were  his 
opponents. 

40th.  Were  the  polls  abandoned  by  the  judges  during  said  election  day? — Ans. 
They  were ;  they  adjourned  for  breakfast ;  they  went  out  and  staid  at  least  three- 
quarters  of  an  hour.  They  also  took  a  recess  for  dinner,  and  went  owt  and  staid  at 
least  three-quarters  of  an  hour  or  an  hmir,  as  well  as  I  can  remember. 

41st.  Were  there  Democrat,  Republican,  and  Mahone  ticket  holders  at  the  polls  of 
your  precinct  on  election  day,  November  6th,  1888? — Ans.  There  were. 

4"iud.  State  whether  or  not  ballots  were  in  the  rooms  where  the  polls  were  held 
laying  loose  near  the  ballot-box  on  said  election  day. — Ans.  Yes;  there  was  a  pack- 
age of  Democratic  ballots  laying  iu  a  few  feet  of  the  ballot-box. 

43 1.  State  what  was  done  when  the  polls  were  closed  at  sundown  on  election  day, 
November  6th,  1888. — Ans.  The  clerks  of  election  and  everybody  else,  except  the 
judges,  were  excluded  from  the  room,  and  the  judges  immediately  proceeded  to  open 
the  ballot-box  and  count  the  ballots.  A  few  minutes  before  the  polls  were  closed  I 
asked  one  of  the  judges  to  let  me  stay  in  and  see  the  ballots  counted.  He  objected, 
and  snid  they  did  not  want  anybody  in  the  room  but  the  judges — that  was  just  a  few 
niinules  before  the  polls  closed.  I  came  out  then  and  saw  Mr.  May,  who  was  one  of 
the  c  I'rks,  and  asked  him  could  I  go  in  with  him,  and  he  said  I  could.  We  staid  out 
I  guess  about  half  an  hour,  and  when  we  wont  to  the  door  to  go  in  we  had  to  wait 
at  least  fifteen  or  twenty  minutes.  In  the  mean  time  Mr.  King  rapped  at  the  door 
several  times,  but  they  would  not  open  the  door.  When  we  did  go  in  the  ballots  had 
all  been  taken  out  of  the  box  and  were  in  three  separate  lots  on  the  table.  I  asked 
one  of  the  judges  how  the  vote  stood,  and  he  replied  that  Langston  had  fifty-six, 
Arnold  fifty,  and  Venable  one  hnndred  and  thirty-three.  The  clerks  then  looked  at 
the  books  and  found  that  there  were  twenty-five  more  ballots  than  there  were  names 
on  the  poll-books.  They  then  blindfolded  one  of  the  judges  and  drew  out  twenty- 
five  ballots,  thirteen  of  Venable's,  eight  of  Langstou's,  and  four  of  Arnold's. 

44th.  You  have  stated  that  two  of  the  officers  of  the  election,  the  clerks,  were  ex- 
cluded from  the  room  where  the  count  of  the  vote  was  being  made,  by  the  judges  of 
the  election.  State  how  long  it  was  before  the  clerks  were  admitted  to  the  room, 
and  whether  or  not  their  said  admission  was  obtained  easily  or  under  difficulties. — 
Ans.  I  think  said  clerks  were  out  fully  an  hour.  Their  admission  was  not  obtained 
easily.  Mr.  May  went  to  the  door  and  rapped  good  many  times,  and  thej'  had  to 
wait  fully  fifteen  minutes  before  they  could  get  in,  and  the  judges  knew  very  well 
who  it  was,  too.  I  mean  to  say  the  clerks  were  not  admitted  until  the  judges  got 
ready  to  open  the  door.  The  door  was  locked.  They  then  got  in  easily  enough  when 
the  door  was  unlocked. 

45th.  How  many  votes  were  cast  for  Jno.  M.  Langston  for  Congress  at  your  said 
precinct  on  said  election  day  ? — Ans.  I  believe  there  were  sixty-six  cast  for  him. 

The  excess  of  ballots  appears  by  the  return  of  the  judges  to  have 
been  2G.  Mr.  Smith  also  testifies  to  the  fact  that  the  polls  were  held  in 
an  unusual  place.  The  customary  place  for  holding  the  election  at  this 
precinct  had  been  the  court-room  of  the  court-house.  At  this  particular 
election  it  was  found  advisable  to  occupy  a  small  jury  room  and  ex- 
clude all  witnesses,  not  exceptiug  the  clerks  of  election,  which  would 
have  been  impracticable  in  the  large  and  commodious  court-room. 

William  Smith,  a  farmer,  sixty-two  years  old  and  a  resident  of 


442  LANGSTON   VS.    TENABLE. 

Lunenburgh  county  all  bis  life,  was  called  as  a  witness,  and  the  follow- 
ing is  quoted  from  his  testimony : 

4th.  Can  you  state  positively  whether  or  not  Captain  Austin  was  at  the  iiolls  before 
the  voting  commenced  ? — Ans.  Yes,  sir ;  he  was  there  before  my  work  was  done.  He 
was  in  the  room  when  the  judges  swore  themselves  in;  him  and  Mr.  May  both. 

5th.  Were  Captain  William  P.  Austin  and  B.  H.  May  the  judges  of  election  atyour 
precinct  on  election  day  ?  And'if  they  were  not,  please  give  the  names  of  the  per- 
sons who  served  as  judges  of  election. — Ans.  They  were  not  the  judges  that  conducted 
the  said  election.  E.  G.  Boyre,  T.  F.  Robertson,  and  E.  C.  Goodwin  were  the  judges 
who  conducted  said  election. 

Gth.  Why  is  it  that  Messrs.  Boyre,  Robertson,  and  Goodwin  served  as  judges  of 
election  at  your  precinct,  when  Messrs.  Austin  and  May,  the  two  duly  appointed 
judges  of  election,  were  at  the  polls  before  the  voting  commenced? — Ans.  I  can't 

TKLL   YOU,  WITHOUT  THEY  WANTED  TO  DO  SOMETHING  THAT   CaPT.  AUSTIN  AND  Mi{, 

May  did  not  want  to  go  into. 

7th.  Was  there  any  explanation  made  of  it  at  the  polls? — Ans.  No,  sir;  they  just 
went  right  in  and  went  to  work  like  they  had  been  appointed  by  the  board. 

8th.  What  time  did  the  polls  open  on  the  morning  of  the  election  ? — Ans.  The  sun 
was  only  about  five  minutes  high  when  they  commenced. 

9th.  When  did  Captain  Austin  first  leave  the  polls  after  the  voting  had  com- 
menced ? — Ans.  Some  eight  or  ten  had  voted  when  Captain  Austin  was  inside. 

10th.  How  often  did  you  see  Captain  Austin  at  the  polls  during  the  day,  how  long 
did  he  remain  there,  and  what  was  he  doing  ? — Ans.  All  day  long  he  was  on  the 
election  grounds  with  his  tickets  in  his  hands. 

11th.  Where  were  the  polls  held  ?  Were  they  held  at  the  usual  place  of  voting? 
And,  if  not,  describe  the  place  where  they  were  held,  and  describe  the  difleience 
between  the  place  where  they  were  usually  held  and  the  place  where  they  were  held 
November  the  Gth,  18i8. — Ans.  The  polls  were  held  in  one  of  the  jury-rooms,  not  the 
usual  place  of  voting.  The  place  where  they  were  held  was  in  one  of  the  jury-rooms. 
One  of  them  is  a  large  room  and  one  is  a  small  room.  The  room  that  they  got  in  last 
election  was  a  jury-room,  where  the  judges  got  in  and  could  shut  the  door  and 
keep  the  people  out.  I  told  the  judges  of  election  that  morning  that  there  was 
something  another  wrong  going  to  be  done  here  to-day,  and  some  of  them  replied  to 
me,  why  ?    And  I  told  them  because  they  were  holding  the  election  in  a  room. 

12th.  Did  you  see  any  ballots  lying  loose  near  the  ballot-box  during  the  day? — 
Ans.  I  did,  sir.  They  had  the  door  opened  about  ten  inches,  and  the  box  was  set- 
ting sorter  in  front  of  the  door  where  we  could  see  it,  and  the  judge  who  received 
the  tickets  he  was  sitting  right  in  front  of  the  crack  of  the  door,  and  right  behind  the 
judge  sitting  there  laid  a  handful  of  Democratic  tickets. 

13th.  Who  were  the  clerks  and  who  was  the  U.  S.  supervisor  at  said  election? — 
Ans. — Mr.  B.  H.  May  and  J  no.  W.  Cleaton  were  the  clerks,  and  W.  J.  Bragg  was  the 
U.  S.  sui)ervisor. 

I4th.  Were  all  the  officers  of  election  friends  or  opponents  of  Juo.  M.  Langston  for 
Congress  ? — Ans.  They  were  all  his  opponents. 

151  h.  Were  or  were  not  the  polls  abandoned  during  the  day  by  the  judges  of  elec- 
tion I — Ans.  'J'hey  took  a  recess  for  breakfast  and  for  diuner. 

1(51  h.  State  what  happened  when  the  polls  closed. — Ans.  Directly  after  the  polls 
closed  the  clerks  came  out  and  the  supervisor  and  I  said  to  Mr.  Cardozo  that  the 
supervisor  had  come  out  and  gone  off  home,  and  I  told  him  I  was  going  after  the 
supervisor  to  come  back  and  see  the  votes  counted,  and  Mr.  Cardozo  said  the  super- 
visor WHS  sick.  I  did  not  go  after  him.  The  clerks  staid  out,  I  reckon,  at  least  an 
hour,  and  we  went  to  the  door  and  asked  the  judges  to  let  us  come  in,  and  they  refused 
to  do  it.  And  in  about  an  hour  Mr.  May  came  back  and  they  turned  the  two  clerks  in 
and  J.  W.  Smith. 

17th.  State  auythiug  else  you  know. — Ans.  Myself  and  Mr.  Jno.  W.  Cleaton,  who 
was  one  of  the  clerks  of  the  election,  got  to  talking  after  the  election,  and  Mr. 
Cleaton  told  me  that  the  judges  of  election  ordered  them  out  of  the  room  that  night, 
and  said  if  they  knew  he  had  not  been  a  good  Democrat  they  would  not  have  let  him 
serve  as  a  clerk  of  the  election,  and  he  asked  them  why,  because  he  told  them  that 
he  never  saw  them  order  the  clerks  out  of  the  room  before. 

18th.  Was  this  Mr.  Cleaton  an  old  clerk  of  the  election  at  this  precinct  ? — Ans.  He 
was. 

19th.  Under  what  circumstances  did  Mr.  Cleaton  make  this  statement  to  you  ? — 
Ans.  He  came  by  my  house,  and  got  me  to  carry  him  part  of  the  way  home,  and 
made  said  statement  to  me  in  the  presence  of  his  son. 

Let  it  be  remembered  that  this  is  not  disputed  by  evidence.  Mr. 
Cleaton  was  not  called  as  a  witness,  presumably  for  the  reason  that, 
if  called,  he  would  have  corroborateil  the  statements  of  Mr.  Smith. 


LANGSTON   VS.    V ENABLE.  443 

W.  P.  Austin,  the  supplanted  judge,  was  called  as  a  witness  by 
contestee.  He  testifies  that  the  judges  and  clerks  had  been  sworn  in 
before  he  reached  the  polls  and  before  one  hour  after  the  time  for 
opening  the  polls  had  expired.  This  was  in  direct  violation  of  the 
statute  quoted  above.     This  is  not  disputed  or  explained. 

T.  F.  Kobertson  was  the  only  one  of  the  judges  sworn  to  sustain 
their  acts.  He  guardedly  swears  in  answer  to  the  leading  question 
whether  the  election  was  fair  and  honest,  '■'■It  was  as  far  as  I  saw,  sir." 
He  also  testifies  to  his  inexperience  in  election  matters,  and  was  no 
doubt  put  forth  as  a  witness  because  he,  of  all  the  judges,  was  inno- 
cently ignorant  of  the  illegal  acts  of  his  colleagues,  whose  caution 
kept  them  from  taking  the  stand. 

On  cross  examination  Mr.  Robertson  says,  page  1097. 

28th.  Please  state  when  the  canvass  of  the  vote  commenced  after  the  polls  were 
closed  at  snndown. — Ans.  Just  as  quick  as  we  could  ;  no  recess  was  taken. 

29th.  Where  was  the  clerks  of  election,  B.  H.  May  and  J.  W.  Clinton,  when  the 
ballot-box  was  opened  to  proceed  with  the  count  and  canvass  of  the  vote  ? — Ans.  I 
don't  know  ;  they  were  there  just  then.  Mr.  May  excused  himself;  said  he  had  some 
business  he  had  to  attend  to,  Mr.  Clinton  excused  himself,  that  he  wanted  to  walk 
about  a  little,  and  we  could  go  on  without  them  as  easy  as  we  could  with  them.  By 
the  time  we  got  the  tickets  divided  they  knocked  at  the  door  and  we  turned  them  in, 
Jno.  Wm.  Smith,  Republican,  E.  J.  Toone,  Democrat,  with  them. 

30th.  Then  it  is  a  fact  that  the  ballots  were  taken  out  of  the  ballot-box  and  divided 
into  different  piles  during  the  absence  of  the  two  clerks  of  election,  is  it  not? — ^Ans. 
Yes,  sir ;  by  Mr.  E.  G.  Bayne,  Republican. 

3l8t.  Please  describe  how  the  ballots  were  taken  out  of  the  ballot-box  in  order  to 
count  them. — Ans.  We  took  the  top  off  of  the  box  and  turned  it  upside  down  and 
poured  them  all  down  on  the  table  in  one  pile. 

32nd.  Then  it  is  a  fact  that  the  ballot-box  was  turned  upside  down  and  the  ballots 
were  dumped  in  one  pile  on  the  table,  instead  of  taking  them  out  from  the  ballot-box 
singly,  one  by  one  ;  is  that  so  ? — Ans.  Yes,  sir;  and  then  they  were  picked  up  one  by 
one  and  separated. 

34th.  How  long  were  Clerks  of  Election  Clinton  and  May  absent  ? — Ans.  Not  more 
than  fifteen  or  twenty  minutes,  I  reckon. 

35th.  How  often  did  they  knock  at  the  door,  and  how  long  were  they  knocking  at 
the  door  in  order  to  gain  admission  into  the  room? — Ans.  They  knocked  several 
times;  they  were,  sir,  I  reckon,  somethiug  like  five  minutes;  we  were  busy  dividing 
the  tickets  and  did  not  want  to  stop,  but  had  it  to  do  to  get  rid  of  their  fuss. 

36th.  What  was  Mr.  Bayne's,  the  judge  of  election,  condition?  Was  he  perfectly 
sober  at  this  time,  or  was  he  under  the  influence  of  intoxicating  liquors  ? — Ans.  1  do 
not  know  whether  he  was  or  not ;  he  appeared  to  be  mighty  badly  excited;  whether 
he  was  tight  or  not  1  do  not  know. 

37th.  How  many  ballots  were  there  found  in  the  ballot-box  in  excess  of  (he  total 
number  of  names  found  on  the  poll-books? — Ans.  Twenty-six. 

38.  How  long  did  it  take  to  canvass  the  vote  and  who  called  off  the  ballots  ?— Ans. 
I  don't  recollect.     E.  G.  Bayne,  with  Jno.  Wm.  Smith  to  help  him. 

39th.  Was  not  Mr.  Bayne's  condition  such  at  this  time  that  ho  required  of  Jno.  Wm. 
Smith  to  enable  him  to  call  off  the  ballots  ? — Ans.  In  the  beginning  he  seemed  to  be 
quite  nervous,  and  after  calling  off  the  names  on  a  dozen  or  so  tickets,  he  then  went 
on  without  the  assistance  of  anybody. 

40th.  Who  else,  besides  Judge  of  Election  Bayne,  handled  the  ballots,  counted,  and 
read  off  the  same  ? — Ans.  E.  C.  Goodwyn  and  myself,  the  two  other  judges,  helped 
to  count  them;  neither  of  us  read  off  any  names,  but  looked  on,  and  I  strung  the 
tickets  as  he  read  them  off. 

41st.  Which  one  of  the  judges  or  clerks  of  election,  if  anyone  of  them,  was  friendly 
towards  Jno.  M.  Langston  for  Congress? — Ans.  All  of  us,  I  reckon,  sir;  I  have  no 
animosity  against  him,  and  1  don't  reckon  the  others  had. 

42nd.  You  have  stated  that  E.  G.  Bayne  was  a  Republican.  How  do  you  know  that 
fact  ? — Ans.  He  told  me  so  two  or  three  weeks  ago. 

43rd.  Please  state,  if  you  have  no  objection,  to  which  political  party  you  belong, 
and  what  candidate  for  Congress  you  supported  during  the  last  Cougressional  cam- 
paign.— Ans.  I  supported  Mr.  E.  C.  Venable,  and  am  to-day  and  was  born  a  Democrat, 
and  am  to-day,  and  expect  to' die  so. 

44th.  To  wliat  political  party  did  Mr.  E.  C.  Goodwyn,  the  other  judge  of  electiou, 
and  Mr.  B.  H.  May  and  J.  W.  Clinton,  the  last  two,  who  were  clerks  of  electiou,  be- 
long during  the  last  Congressional  campaign  in  this  district? — Ans.  I  would  not 
swear  that  I  know  what  either  of  them  are,  except  Mr.  B.  H.  May,  but  they  told  me 
they  were  Democrats.     Mr.  May  is  a  Democrat. 


444  LANGSTON   VS.    VENABLE. 

The  clerks  were  not  called  as  witnesses. 

The  only  United  States  supervisor  serving,  W.  J.  Bragg,  left  im- 
mediately alter  the  closing  of  the  polls,  not  to  return,  and  was  con- 
sequeutly  ignorant  of  any  of  the  illegal  acts  of  the  judges  charged. 
The  committee  is  of  the  opinion  that  the  excess  of  2G  ballots  in  a  total 
vote  of  about  200  could  not  have  occurred  without  the  connivance  of  the 
judges  of  election,  and  is  such  evidence  of  fraud  as  must  necessarily 
exclude  this  box.  Contestee  does  not  in  his  briefs  even  mention  the 
excess  of  ballots.  The  returns  awarded  Venable  119,  Langston  48,  and 
Arnold  46  votes.  The  returns  are  impeached  and  rejected.  'No  com- 
petent evidence  was  offered  as  to  the  true  vote  cast.  The  account  now 
stands : 

Plurality  for  Venable 5G9 

Deduct  plurality  for  Venable  at  Lewiston,  which  is  equivalent  to  rejecting  the 
poll 71 

Leaves  plurality  for  Venable 498 

MANNBORO,   AMELIA  COUNTY. 

The  electoral  commissioners  of  Amelia  County  reported  this  precinct 
as  having  given  122  votes  for  Venable,  and  111  for  Langston.  The 
regularity  of  this  return  was  challenged  by  contestant  in  his  notice  of 
contest.  The  only  thing  in  the  Record  bearing  upon  this  question  is 
found  on  page  173,  giving  the  following  unsigned  statement: 

FOR    CONGRK88. 

E.  C.  Venable  rec'd  (122)  one  hundred  and  twenty-two  votes. 

John  Mercer  Langston  rec'd  (111)  one  hundred  aud  eleven  votes, 

E.  W.  Arnold  rec'd  (73)  seventy-three  votes. 

After  the  names,  etc.,  are  all  set  down,  and  at  the  foot  of  the  list,  a  certificate  in 
the  following  form  is  required  to  be  given : 

We  hereby  certify,  That had votes  for ;  aud had 

votes  for ;  that had votes  for ,  &c. 


Clerks.  Judges. 

If  this  is  the  act  of  the  officers  of  election  it  is  difficult  to  see  why  the 
contestee  did  not  introduce  some  evidence  to  show  that  fact.  As  it  is 
the  plurality  of  eleven  returned  for  contestee  must  be  deducted  from  his 
former  vote. 

Plurality  for  Venable 498 

Deduct  plurality  for  Venable  returned  in  Mannboro 11 

Leaves  plurality  for  Venable 487 

CITY   OF   PETERSBURGr. 

This  brings  us  to  the  city  of  Petersburg,  the  home  of  contestant,  and 
the  center  of  population  and  politics  of  the  district.  And  it  be^;oines 
proper  here  to  give  the  general  plan  pursued  by  contestant  in  the  dis- 
trict to  test  the  fairness  and  honesty  of  the  election  returns.  There  is 
abundant  evidence  that  apprehension  of  frauds  were  well  founded,  and 
contestant  proposed  to  disclose  them. 

M.  N.  Lewis,  thirty  years  old,  an  editor  and  lawyer,  residence  Peters- 
burg, had  charge  of  the  campaign  of  contestant  as  secretary  of  his  cain- 
j)aign  committee,  and  in  his  testimony  details  the  methods  pursued. 


LANGSTON   VS.    VENABLE.  445 

A  circular  letter  issued  by  contestant  to  friends  in  different  parts  ot 
the  district  is  testified  to  by  this  witness.  We  quote  the  following  ex- 
tract from  it,  found  on  page  539  of  the  Record: 

THE  ELECTION. 

The  afteruoon  before  the  election,  on  Monday,  November  5th  next,  see  that  the 
tickets  are  at  yonr  precinct ;  and  if  you  do  not  receive  them  or  know  where  they  are 
go  at  once  to  the  court-honse  and  ascertain  where  they  are.  This  is  very  important, 
because  no  man  can  vote  without  a  ballot.  On  election  morning  be  at  the  polls 
without  fail  at  least  iifteeu  minutes  before  sunrise.  Not  later  than  6.30  o'clock  a.  m. 
On  November  6th  the  sun  rises  at  6.42  o'clock  and  sets  at  5.06  o'clock. 

If  the  judges  and  clerks  of  election  are  not  present,  send  some  trusted  friend  for 
them,  and  if  they  do  not  come  by  7.15  o'clock  a,  m.,  consult  some  of  the  respectable 
white  voters  at  the  polls  and  take  proper  steps  to  open  the  polls  and  conduct  the 
election. 

i  presume  that  the  white  voters  present  will  take  sufflcieut  interest  to  conduct  the 
election  in  the  manner  prescribed  by  law  ;  but  if  they  do  not,  send  at  once  for  some 
good  lawyer,  engage  him  at  a  reasonable  fee  to  come  to  the  polls  and  open  the  polls 
and  conduct  the  election  under  his  instruction.  He  will  find  the  full  instructions  in 
the  now  code,  a  copy  of  which  every  justice  of  the  peace  has  in  his  possession,  and 
whiclj  you  should  borrow  from  him  and  study  the  registration  and  election  laws  as 
soon  as  you  receive  these  instructions. 

On  the  election  day  the  most  important  part  of  your  duty  is  to  be  discharged.  I  send 
you  herewith  blank  book  and  blank  returns.  Yourself  and  another  reliable  intelli- 
gent man  must  remain  at  the  polls  all  day  ;  do  not,  I  urge  you,  leave  the  polls  for  any 
purpose  whatever,  unless  you  leave  in  your  place  during  your  absence  a  reliable,  in- 
telligent friend  who  can  read  and  write.  In  the  book  I  send  you  do  not  fail  to  enter 
the  names  of  every  voter  who  casts  his  ballot  for  me  on  election  day  at  your  voting 
precinct.  This  is  very  important,  and  I  shall  depend  upon  your  careful  attention  to 
it.  Enter  the  names  plainly  of  every  man  who  votes  for  Langston.  Do  not  fail  to  do 
this.  The  record  of  the  names  of  every  man  who  votes  for  me  may  be  vital  to  ray  in- 
terest. You  will  find  printed  instructions  in  each  book,  which  read  and  carefully 
follow  during  the  day  and  after  the  polls  are  closed. 

1  ask  your  special  attention  to  the  "  election  return,"  as  per  blank  form  herewith. 
Please  read  the  instructions  at  the  bottom  of  the  same  and  be  careful  to  observe  them 
strictly.  When  the  polls  are  closed  select  an  intelligent  friend  to  go  inside  and  wit- 
ness the  counting  of  the  ballots,  and  instruct  him  to  look  and  see  that  the  returns  are 
all  propeily  made  out  and  signed  by  the  judges  and  clerks  of  election  according  to 
the  form  on  the  poll  books.  Do  not  fail  to  realize  the  great  importance  of  having 
the  returns  made  out  properly;  if  they  are  not,  the  commissioners  of  election  for 
your  county  may  reject  them  and  adjourn  without  observing  the  law  as  to  amended 
returns. 

On  the  night  of  election  notifj'  me  in  writing  of  every  irregularity,  fraud,  ballot-box 
sin  fling,  or  any  other  violation  of  law  on  election  day  at  your  precinct,  and  be  care- 
ful to  give  me  full  particulars. 

I  ask  you  to  read  these  instructions  over  and  over  again.  Impress  every  point 
upon  your  mind,  and  if  you  do  not  understand  them  let  me  know. 

Remember,  my  friend,  that  my  election  may  depend  upon  your  efforts. 

Please  acknowledge  receipt  of  this  circular-letter  immediately,  so  that  I  may  know 
that  you  have  received  it  and  can  rely  upon  your  attention  to  the  same. 
I  am,  sincerely,  your  friend, 

Jno.  Mercer  Langston. 

To , 

, Precinct, 

, County. 

At  the  Itopublican  Langston  clubs  in  the  city  of  Petersburgh  it  was 
agreed  that  every  supporter  of  Langston  should  vote  an  open  ticket} 
that  he  should  show  his  ticket  to  some  reliable  friend  of  Langston  se- 
lected for  the  purpose  of  registering  the  names  of  the  Langston  voters 
and  witnessing  the  deposit  of  their  ballots  in  the  box.  This  plan  was 
very  generally  followed  by  the  enthusiastic  supporters  of  contestant, 
ami  the  results  piomptly  reported  to  him  after  election.  With  this  plan 
of  campaign  in  mind  we  will  consider  the  election  in  the  third  and 
sixth  wards  of  Petersburgh.    There  seems  to  have  been  a  general  belief 


446  LANGSTON   VS.   VENABLE. 

on  the  part  of  the  supporters  of  contestant  that  it  would  be  necessary 
to  i)rove  the  true  vote  by  other  means  than  the  returns,  and  they  re- 
sorted to  the  only  means  to  do  so  within  their  power. 

THIRD  WARD. 

The  returns  from  this  ward  give  Tenable  518,  Langston  174,  and 
Arnold  105  votes. 

M.  N.  Lewis,  the  witness  referred  to  above,  testifies  that  he  was  at 
the  polls  all  day,  from  the  opening  of  the  same  until  long  after  they 
closed,  and  kept  tally  of  the  Eepublicans  voting  for  Langston  and  Har- 
rison, in  pursuance  of  the  instructions  of  his  party. 

The  judges  and  clerks  of  election  were  all  Democrats  and  bitterly 
opposed  to  contestant.  Only  one  United  States  supervisor  served,  and 
he  a  Democrat. 

The  following  extracts  are  submitted  from  the  testimony  of  Mr. 
Lewis,  which  is  too  voluminous  to  quote  at  length : 

44.  Qnestion.  Do  jou  or  do  you  not  know  Wm.  Crichton,  Jno.  F.  Williams,  and  Vir- 
ginius  S.  Weddell  ? — Answer.  I  do  ;  they  were  the  judges  of  election  in  3rd  ward. 

45.  Question.  At  what  election  were  they  the  judges  of  the  election  ? — Answer. 
Election  held  Nov'r  6th,  1888. 

46.  Question.  Do  you  know  or  not  R.  W.  Bowden  and  Thos.  S.  GrifiSn  f — Answer. 
Yes,  sir ;  they  were  the  clerks  of  the  election  held  Nov'r  6th,  1888. 

47.  Question.  Do  you  or  do  you  not  know  G.  B.  Gill  t — Answer.  Yes,  sir;  he  was 
the  U.  S.  supervisor  at  3rd  ward  polls,  Nov'r  6th,  1888. 

48th.  Question.  How  many  U.  S.  supervisors  were  on  duty  at  the  polls  in  the  3rd 
ward,  this  city,  on  election  day,  Nov'r  6th,  18tt8? — Answer.  Only  one,  a  Democratic 
supervisor,  Gorman  B.  Gill. 

49th.  Question.  Please  state  what  political  party  all  the  judges  and  clerks  of  elec- 
tion and  the  U.  S.  supervisor  at  the  3rd  ward  on  election  day,  Nov'r  6th,  1888,  be- 
longed ? — Answer.  To  the  Democratic  party ;  each  one  of  whom  voted  the  straight 
Democratic  ticket  in  my  presence. 

50.  Question.  Please  state  whether  or  not  all  the  officers  of  election  were  bitterly 
opposed  to  Prof'r  Langston's  election  to  Congress  ? — Answer.  They  were. 

51.  Question.  Please  state  whether  or  not  you  know  F.  R.  Clements,  who  was  ap- 
pointed U.  S.  supervisor,  3rd  ward,  this  city,  at  the  said  election.— Answer.  I  do. 

52.  Question.  Did  he  serve  as  U.  S.  supervisor  at  said  ward  on  said  election  day  f — 
Answer.  No,  sir  ;  nor  was  he  seen  about  the  polls  until  late  in  the  afternoon  of  elec- 
tion day,  Nov'r  6th,  1888. 

59.  Question.  Do  you  or  do  you  not  know  how  many  colored  votes  were  cast  at  the 
3d  ward  polls  on  said  election  day  for  E.  C.  Venable  for  Congress  ?— Answer.  Not 
more  than  15. 

60.  Question.  Do  you  or  do  you  not  know  how  many  colored  votes  were  cast  at  the 
3d  ward  polls  on  said  election  day  for  R.  W.  Arnold  for  Congress  ?— Answer.  About  20. 
There  were  not  more  than  50  ballots  cast  by  the  voters  at  3rd  ward  polls  on  elec- 
tion day,  Nov.  6th,  1888,  for  R.  W.  Arnold. 

62.  Question.  Did  you  or  did  you  not,,  as  a  friend  and  supporter  of  Profr.  Lang- 
ston's, apply  to  one  of  the  judges  of  election  to  be  allowed  to  enter  the  room  when 
the  polls  closed  at  sundown  in  your  ward  at  said  election  in  order  to  witness  the 
count  and  canvass  of  the  vote? — Answer.  I  had  been  allowed  to  go  into  the  polls  of 
the  3d  ward  to  witness  the  count  of  the  ballots  at  nearly  every  election  for  the  last  6 
years.  I  applied  on  the  6th  of  Nov'r,  1888,  when  the  polls  closed,  to  Mr.  William 
Crichton,  one  of  the  judges  of  the  election,  to  be  allowed — that  since  there  was  neither 
a  Republican  judge,  clerk,  or  supervisor  in  the  polls — that  I  be  allowed  to  come  in 
and  witness  thecount  of  the  ballots,  and  was  refused  admission.  I  will  state  further 
that  no  Republican  witnessed  the  count  of  the  ballots  in  3rd  ward  on  the  6th  day  of 
November,  18-8. 

63.  Question.  How  long  did  the  said  count  and  canvass  of  the  vote  of  your  ward 
last  ? — Answer.  Until  about  11  o'clock. 

64.  Question.  Did  you  keep  a  record  at  the  polls  of  the  3rd  ward  on  said  election 
day,  and  if  so,  what  record? — Answer.  I  kept  a  record  of  the  votes  cast  for  Jno.  M. 
Langston. 

65.  Question.  Why  was  this  record  kept  at  the  polls  of  the  3rd  ward  on  said  elec- 
tion day  of  the  votes  cast  for  Jno.  M.  Langston  ? — Answer.  In  order  to  be  able  to 
know  how  many  votes  were  cast  for  Jno.  M.  Langston  for  Congress. 


LANGSTON   VS.    VENABLE.  447 

66.  Question.  State  where  you  stood  at  the  polls  of  the  3rd  ward  on  election  day 
and  how  long  you  remained  there? — Answer.  There  were  two  entrances  to  the  3rd 
ward  polls,  one  for  the  white  voters  by  which  they  approached  the  ballot-box,  the 
other  by  which  the  colored  voters  approached  the  ballot-box.  I  stood  right  at  the 
entrance  where  the  colored  voters  approached  the  ballot-box,  and  where  I  could  see 
the  ballots  given  by  the  voter  to  the  judge  who  received  the  ballots  and  deposited 
them  in  the  box.  I  was  there  from  sunrise  until  sunset,  only  leaving  once  for  about 
30  minutes.  I  saw  and  read  the  ballot  of  every  \oter  whose  name  I  have  chec1<ed  on 
my  book,  and  I  saw  the  same  ballot  which  I  read  in  the  hands  of  each  voter  deposited 
by  the  judge  in  the  ballot-box. 

67.  Question.  Have  you  the  said  record  books  in  your  possession? — Answer.  I  have. 

68.  Question.  Are  the  four  books  you  have  now  here  before  the  notary  public  the 
identical  four  books  you  had  at  the  polls  in  the  3d  ward  on  election  day,  November 
the  6th,  1888?— Answer.  Yes,  sir. 

('.9th.  Question.  Did  you  or  did  you  not  enter  in  your  own  handwriting  tiie  names 
of  the  colored  voters  in  the  identical  four  books  you  have  now  before  the  notary 
public  at  your  ward  on  election  day,  Novr  6th,  1888,  at  the  time  the  said  colored 
voters  cast  their  ballots  ? — Answer.  I  entered  all  the  names  with  the  exception  of  a 
few  that  were  entered  during  the  30  minutes  I  was  away  from  the  polls. 

70.  Qiiesfiou.  When  and  under  what  circumstances  did  you  particularly  observe 
the  ballot  of  each  colored  voter  before  recording  his  name  in  said  book  ? — Answer. 
I  read  his  ballot  carefully,  and  after  I  had  seen  the  judge,  to  whom  he  handed  his 
ballot,  deposit  it  in  the  ballot-box  I  then  placed  his  name  on  my  book. 

71.  Question.  Please  give  the  name  of  the  judge  or  judges  of  election  who  received 
the  ballots  from  the  voters  at  the  polls  of  your  ward  on  said  election  day. — Answer. 
"Wm.  Crichton. 

72.  Question.  Please  examine  the  ticket  I  hand  you  and  state  whether  or  not  the 
ballot  you  saw  in  the  hands  of  each  voter  of  the  3rd  ward  on  election  day,  Nov'r  6th. 
1888,  and  which  was  delivered  to  and  received  by  the  judge  of  election,  was  identi- 
cally like  the  ballot  I  hand  you,  and  did  you  or  did  you  not  enter  upon  your  said 
books  the  name  of  each  colored  voter  who  cast  a  ballot  identically  like  the  one  here 
presented  to  you? — Answer.  This  is  the  identical  ballot  voted  by  each  voter  whose 
name  I  put  upon  my  book. 

The  ballot  here  filed  is  a  straight  Eepublican  ballot,  with  Langston 
for  Congress. 

73.  Question.  You  have  stated  that  you  stood  at  the  polls  of  the  3d  ward  all  the  day 
of  election  from  the  opening  to  the  closing  of  the  same,  excepting  about  30  minutes, 
and  that  you  were  immediately  at  the  polling  place  of  the  3d  ward  in  this  city  ;  that 
then  and  there  you  took  down  in  the  four  books  which  you  have  here  identified  and 
handed  to  the  notary  public  the  name  of  every  colored  voter,  showing  you  a  ticket 
identical  with  the  one  you  have  just  examined,  and  which  is  filed  with  these  deposi- 
tions, marked  Exhibit  M,  after  said  ticket  had  been  delivered  to  and  received  by  the 
judge  of  election  at  said  ward  on  election  day,  Nov'r  6th,  1888.  Now  please  give  the 
name  of  each  voter  who  you  so  entered  in  said  books  as  you  have  stated  ? 

The  witness  here  gave  the  names  of  286  voters  recorded  by  him  as 
all  (except  two  indicated)  having  voted  for  contestant,  and  filed  the 
lonr  books  containing  the  names  with  the  notary  taking  the  evidence, 
and  they  are  in  the  possession  of  the  committee.  The  names  appear 
in  the  record.  The  word  "  Langston "  is  written  after  each  name  in 
these  books,  except  the  names  numbered  222  and  227,  which  are  marked 
'<  Dem." 

74.  Question.  You  have  stated  that  you  occupied  the  position  immediately  at  the 
window  of  the  polling  place  in  the  3d  ward,  on  the  side  at  which  the  col'd  people 
voted,  all  the  dayof  election  except  about  30  minutes.  Pleasestate  how  many  names 
were  entered  upon  the  books  you  kept  during  your  absence,  if  any  were  so  entered.^ 
Answer.  16. 

These  sixteen  names  were  fully  identified  by  Wm.  J.  Smith,  who 
entered  them  in  the  absence  of  Mr.  Lewis. 

78.  Question.  You  have  stated  that  on  election  day  W.  J.  Smith  during  yonr  tem- 
porary absence  from  the  polls,  entered  the  names  of  16  colored  voters  upon  the  4  books 
which  you  kept.  Please  state,  if  you  remember,  how  many  names  you  recorded  upon 
the  said  books  on  that  day  at  the  time  and  under  the  circumstances  already  testified 
to. — Answer.  I  recorded  two  hundred  and  one  names.    The  others,  with  the  excep- 


448  LANGSTON   VS.    VENABLE. 

tion  of  If)  names,  were  recorded  in  my  presence  and  by  my  iDstrnctionH  by  Wm.  J. 
Smith  and  S.  B.  McE.  Jones. 

7'.».  Qiiestioin.  Have  you,  since  the  6th  day  of  Nov'r,  1888.  compared  the  4  books  as 
to  whioli  you  have  been  testifyiug  with  the  poll-books  of  the  3d  ward,  on  deposit 
in  the  clerk's  office  of  this  city,  or  with  either  one  of  said  poll-books,  or  with  a  certi- 
fied copy  thereof? — Answer.  I  have  compared  the  4  books  with  one  of  the  poll-books. 

80.  Question,  State  what  object  you  had  in  making  such  comparisons,  and  state 
the  result  of  it. — Answer.  I  compared  the  books  to  ascertain  if  they  agreed.  I  found 
that  a  great  many  of  the  nam«s  were  misspelt,  and  some  few  whose  names  I  took  and 
whose  ballot  I  saw  deposited,  their  names  do  not  appear  on  the  poU-book  which  I 
examined. 

HI.  Question.  Are  you  able  from  memory,  or  by  reference  to  any  memoranda  taken 
at  the  time  of  making  such  comparison,  to  say  what  names  there  were  which  you 
entered  on  your  said  books  of  persons  whom  you  saw  (jcposit  1  heir  ballots  at  ;Jrd 
ward,  and  which  names  do  not  appear  on  the  poll-book  you  have  said  you  examined? — 
Answer.  I  can. 

82.  Question.  Then  please  state  these  names. 

Answer.  R.  P.  Armistead,  Eichard  Bragg,  Solomon  Crawford,  Jno.  Hawkes, 
Stephen  Royd,  R.  W.  Smith. 

83.  Question  Do  I  not  understand  you,  then,  to  say  that  with  the  exception  of 
these  6  names  (and  making  no  reference  to  the  differences  in  spelling)  the  record  of 
names  on  the  official  poll-book  of  3rd  ward  of  the  voters  at  the  last  election  contains 
all  the  names  of  the  col'd  voters  recorded  in  your  4  books  as  having  voted  on  that 
day  T — Answer.  It  does. 

The  verity  of  Mr.  Lewis's  books  stands  unquestioned.  Not  one  of  the 
286  voters  of  the  Third  ward  registered  by  him  is  called  to  dispute  the 
fact  that  he  voted  as  Mr.  Lewis  testified  he  saw  him  vote.  Not  one  of 
the  six  men  not  registered  by  the  clerks,  but  whom  Mr.  Lewis  says  he 
saw  deposit  their  ballots,  was  called  to  testify  that  he  did  not  vote  on 
that  day.  This  would  have  been  a  short  and  decisive  way  to  have  im- 
l)eached  the  testimony  of  Mr.  Lewis,  and  it  was  a  way  quickly  resorted 
to  by  contestee  to  impeach  a  similar  record  at  Columbian  Grove,  Lunen- 
burgh  County.  In  that  precinct  the  contestant  called  a  witness  who 
testified  that  he  saw  130  votes  cast  for  contestant,  and  gave  the  names 
of  the  voters.  Two  of  these  voters  were  called  by  contestee,  and  testi- 
fied that  they  did  not  vote  for  contestant.  The  committee  has  permitted 
the  vote  of  Columbian  Grove  to  stand  as  returned.  That  precinct  is 
referred  to  to  illustrate  the  alertness  of  contestee  in  siojilar  cases  to 
defend  the  returns  by  the  oath  of  the  voter  where  the  facts  warranted  it. 

On  cross-examination  Mr.  Lewis  was  asked  eight  hundred  and  nine 
questions,  covering  the  political  history  of  Virginia  for  years ;  this  did 
not  in  any  manner  weaken  his  testimony  in  chief,  but  corroborated 
and  strengthened  it.  The  cross-examination  commenced  February  12 
and  continued  until  February  25.     We  quote  the  following  from  it: 

340.  Question.  You  said  in  answer  to  the  334th  question  that  the  tally-keepers  at 
the  polls  who  kept  the  tally  of  votes  cast  for  Langston  were  instructed  to  put  no 
names  on  the  tally-books  except  the  names  of  those  whom  you  were  absolutely  sure 
voted  for  him;  will  you  please  explain  how  any  tally-keeper  outside  the  house 
could  be  absolutely  certain  how  a  man  voted  ? — Answer.  By  seeing  and  reading  his 
ticket,  which  was  in  every  instance  which  we  have  recorded,  handed  to  the  judge 
who  deposited  them  in  the  box  wide  open,  the  judge  folding  them  instead  of  the 
voter. 

341.  Question.  "Were  Langston's  tally-keepers  also  his  ticket-holders  at  the  polls  ? — 
Answer.  No,  sir. 

342.  Question.  Then  in  each  case  where  the  name  was  entered  on  the  tally-book, 
did  the  voter  bring  his  ticket  to  the  tally-keeper  that  he  might  inspect  it? — Answer. 
He  brought  it  to  me. 

343.  Question.  Was  this  precaution  adopted  at  every  precinct  is  pursuance  of  the 
confidential  circular  sent  out  by  Prof'r  Langston  and  filed  as  a  part  of  this  record, 
marked  Exhibit  H.  ? — Answer.  Yfes,  sir. 

344.  Question.  Did  those  who  cosld  read  themselves  bring  their  tickets  to  youf — 
Answer.  Yes,  sir. 

345.  Question.  Then  I  understand  you  to  say  that  in  every  case  in  which  a  nam9 


LANGSTON   VS.    VENABLE.  449 

was  recorded  in  the  tally-book  that  yoii  kept  that  the  ballot  was  brought  to  you, 
that  you  examined  the  same,  and  that  it  was  voted  openly? — Answer.  Yes,  sir. 

346.  Question.  Was  there  not  a  press  of  voters  at  the  3rd-ward  polls  all  day  or  dur- 
ing a  greater  portion  of  the  day — Nov'r  6th,  1888?— Answer.  During  the  morning 
hours  the  lines  were  continually  kept  up. 

347.  Question.  Did  the  voters  at  3rd  ward  approach  the  polls  in  regular  lines  ? — 
Answer.  Yes,  sir. 

348.  Question.  How  many  abreast  did  they  approach  the  polls? — Answer.  Single 
file,  each  line. 

349.  Question.  Were  you  in  a  position  to  see  the  ballot  voted  which  you  had  in- 
spected ? — Answer.  Right  in  front  of  the  door  and  not  4  feet  from  the  ballot-box. 

3rj0.  Question.  Were  you  on  a  level  with  the  inside  of  the  room  when  the  ballots 
were  received  ? — Answer.  The  elevation  of  the  room  from  the  ground  is  not  more 
than  6  inches. 

.'■51.  Question.  Then  you  were  on  a  level  with  the  voters,  weren't  youf — Answer. 
Yes,  sir. 

On  the  general  subject  of  the  conduct  of  the  campaign,  he  says : 

740.  Question.  What  facilities  for  information  upon  these  subjects  have  you  had  as 
secretary  of  Langstou's  campaign  committee  ? — Answer.  In  every  precinct  in  the  dis- 
trict the  most  intelligent  and  enlightened  men  were  appointed  to  keep  Langston 
tally-books,  and  at  least  one  book  was  forwarded  to  headquarters  as  soon  as  possible 
after  closing  their  respective  precincts. 

741.  Question.  Are  those  books  still  in  your  possession? — Answer.  They  are  in  the 
possession  of  Prof'r  Langstou's  leading  counsel  in  this  case. 

742.  Question.  Is  there  auy  formal  and  informal  affidavit  of  the  correctness  of  the 
contents  of  these  books  made  by  the  parties  who  were  appointed  by  your  campaign 
committee  to  keep  said  books  attached  thereto? — Answer.  In  each  book  pasted  on  a 
fly-leaf  is  a  certificate  as  to  the  correctness  of  the  book,  which  is  signed  by  the  per- 
son keeping  said  book. 

743.  Question.  I  understand,  then,  that  such  certificates  are  the  mere  unsworn 
statements  of  Prof'r  Langstou's  campaign  appointees  and  workers.  Is  this  true? — 
Answer.  Yes,  sir. 

744.  Question.  Have  you  no  other  guarantee  of  the  accuracy  of  said  tally-books  ? — 
Answer.  No,  sir. 

745.  Question.  Have  you  any  means  of  knowing  whether  said  tally-keepers  were  at 
their  post  during  every  minute  of  election  day? — Answer.  Yes,  sir;  persons  who  were 
present  at  each  precinct  from  which  we  received  these  books  assured  us  of  the  con- 
stancy and  faithfulness  of  these  tally-keepers. 

746.  Question.  Have  you  ever  made  any  investigation  of  the  constancy  and  faith- 
fulness of  these  tally-keepers ;  and,  if  so,  when,  and  what  caused  you  to  make  such 
investigation  ? — Answer.  We  have;  a  few  days  after  the  election,  in  order  to  satisfy 
ourselves  that  these  men  had  been  faithful  to  the  trust  imposed  in  them. 

747.  Question.  Had  you  any  reason  to  doubt  their  faithfulness? — Answer.  No,  sir; 
but  as  there  had  been  such  a  wide  dilference  between  their  reports  and  the  official  re- 
]>ort8  we  felt  obliged  to  make  investigation  before  entering  into  this  contest. 

748.  Question.  Where  was  this  investigation  held  and  by  whom? — Answer.*  It  was 
held  in  the  different  counties  by  Mr.  Langstou's  trusted  friends. 

749.  Question.  Were  the  witnesses  put  upon  oath  ? — Answer.  They  were  not. 

750.  Question.  Have  you  any  personal  knowledge  or  information  received  from 
auy  one  who  had  personal  knowledge  of  the  actual  transfer  of  votes  oast  for  ProPr 
Laugston  to  either  of  the  other  candidates  at  any  election  precinct  in  the  district? 
In  other  words,  have  you  seen  or  has  any  one  seen  such  act  of  misconduct  on  the 
part  of  the  officers  of  election,  and  are  noj  the  charges  that  you  make  as  to  the  trans- 
fer of  votes  based  sotely  on  the  inferences  which  you  make  from  the  non-agreement 
of  your  tally-books  and  the  official  returns? — Answer.  Of  course  we  could  not  make 
them  by  auy  other  means,  because  at  the  specific  places  where  these  transfers  were 
made,  in  no  instance  was  a  friend  of  Mr.  Langstou's  allowed  to  witness  the  canvass  of 
the  ballots. 

754.  Question.  Has  it  been  the  custom  in  this  district  in  previous  elections  for  the 
electors  to  show  their  ballots  to  the  party  tally-keeper? — Answer.  No,  sir. 

755.  Question.  Were  there  any  steps  taken  previous  to  Nov'r  Gth  last,  by  Prof'r 
Langstou's  campaign  committee  to  bring  about  a  change  of  custom  in  this  regard? — 
Answer.  Yes,  sir. 

7.'^6.  Quesrion.  What  steps  were  so  taken  and  for  what  purpose  ? — Answer.  For  the 
reason  as  I  have  before  stated,  we  had  every  reason  to  believe  that  fraud  would  be 
committed,  and  in  order  that  we  might  be  enabled  to  ascertain  how  many  ballots 
were  cast  at  each  precinct  for  Harrison,  Morton,  and  Langston,  special  canvassers 
were  sent  throughout  the  district  and  instructed  to  closely  canvass  each  precinct  and 

H.  Mis.  137 29 


450  LANGSTON   VS.    VENABLE. 

to  urofe  Tipon  the  people  that,  as  the  opposing  candidate  would  have  all  the  oflBcers  of 
election,  the  only  remedy  we  had  for  frustrating  their  evil  designs  of  fraud  upon  the 
ballot-box  woukl  be  for  the  Republican  voters  supporting  Harrison,  Morton,  and 
Langstou  to  show  their  tickets  to  the  tally-keepers  who  would  be  supplied  with 
books  at  each  precinct  throughout  the  district  for  the  purpose  of  recording  the  name 
of  each  man  who  should  so  vote  and  exhibit  his  ballot  to  said  tally-keeper. 

W.  J.  Smith,  a  merchant  of  the  Third  Ward,  city  of  Petersburg, 
corroborates  the  testimouy  of  Mr.  Lewis  as  to  what  took  place  at  the 
polls  in  that  ward.  It  is  proper  in  this  connection  to  call  attention  to 
the  fact  that  the  tedious,  irrelevant  cross-examination  of  these  two  wit- 
nesses consumed  all  the  time  allowed  to  contestant  for  taking  evidence 
in  this  ward  and  made  it  impossible  for  him  to  call,  farther  witnesses. 

On  Saturday,  the  9th  day  of  February,  contestant  began  taking 
depositions  as  to  Third  Ward  of  the  city  of  Petersburg,  in  pursuance  of 
notice  which  contained  a  list  of  292  names  of  Kepublicans,  every  one  of 
whom  it  is  claimed  would  have  testified  that  he  was  a  qualified  voter, 
and  voted  for  Langston  in  Third  Ward.  (Record,  pp.  514  to  516.)  The 
first  witness  sworn,  M.  N.  Lewis,  was  asked  by  the  contestee's  counsel 
809  questions  on  cross-examination,  and  was  kept  on  the  witness  stand 
from  February  9  (p.  523)  until  February  25  (p.  588),  both  inclusive, 
a  period  of  seventeen  days.  The  second  witness,  W.  J.  Smith,  was 
sworn  Monday,  February  25  (p.  588),  was  asked  148  cross-questions, 
and  was  kept  on  the  witness  stand  until  Saturday,  the  2d  day  of 
March,  11  o'clock  at  night,  a  period  of  six  days  (p.  599),  when  the  time 
limited  by  law  for  the  contestant  to  take  testimony  expired,  and  the 
notary  closed  the  depositions.  (Record,  pp.  588  to  599.)  By  such 
wanton  waste  of  time  contestant  was  robbed  of  the  opportunity  of 
examining  a  large  number  of  witnesses  who  he  claims  voted  for  him. 
And  contestee  is  estopped  from  claiming  that  the  evidence  of  these  two 
witnesses  is  insufficient,  having  by  his  own  acts  prevented  the  taking 
of  further  evidence  in  this  ward. 

The  only  official  connected  with  the  election  who  was  called  to  sus- 
tain the  official  count  was  the  United  States  supervisor,  Mr.  G.  B.  Gill, 
who  in  a  general  way  testifies  to  the  fairness  of  the  election,  and  says 
it  is  impossible  for  a  person  outside  to  keep  tally  of  the  votes  as  tes- 
tified to  by  Lewis.  On  his  cross-examination  he  makes  the  following 
fatal  admissions  as  to  the  fairness  and  impartiality  of  the  judges,  and 
attention  is  called  to  section  130  of  the  Statutes  of  Virginia,  quoted 
above  in  this  connection: 

3d.  Question.  At  the  time  of  the  closing  of  the  said  polls,  or  thereafter,  did  any  of 
the  party  friends  of  John  M.  Langston  make  a  request  of  the  judges  of  said  precinct 
or  ward  to  be  allowed  to  witness  the  count  and  canvass  of  the  ballots  of  the  vote  cast 
at  said  voting  precinct ;  that  is,  to  be  allowed  to  enter  the  room  when  the  count  of 
the  ballots  and  the  canvass  of  the  vote  was  made  ? — Ans.  There  was  such  a  request 
made,  and  the  judges  replied  that  there  were  United  States  supervisors  appointed  for 
that  purpose  to  see  that  the  ballots  cast  were  properly  counted,  and  that  no  others 
from  either  party  would  be  admitted. 

4th.  Question.  Then,  I  understand  you  to  answer  in  your  foregoing  answer  that  the 
party  friends  of  John  M.  Langston  were  denied  by  the  judges  of  election  that  request 
or  right  ? — Ans.  Yes,  sir. 

.5th.  Question.  Then,  I  understand  you  to  answer  further  that  said  count  and  can- 
vass without  any  party  friends  of  the  said  John  M.  Laugston  was  made  without  their 
witnessing  the  same  ? — Ans.  It  was  made  without  the  friends  of  John  M.  Langston, 
E.  C.  Venable,  or  R.  W.  Arnold  being  present. 

6th.  Question.  Was  there  any  other  United  States  snpervisorof  election  who  acted 
with  you  on  the  said  day  of  election  ;  and  if  so,  who! — Ans.  There  was  not. 

7th.  Question.  Were  you  appointed  a  United  States  8ui>crvisor  as  a  representative 
of  the  Democratic  or  Republican  party  ? — Ans.  I  don't  know.  I  received  a  commis- 
sion from  the  chief  supervisor,  and  he  said  nothiug  about  it. 

8th.  Question.  If  you  are  willing  to  answer,  will  you  state  for  whom  you  voted  for 


LANGSTON   VS.    VENABLE.  451 

Congress  on  said  election  for  this  4th  Congressional  district  of  Virginia? — Ans.  I  de- 
cline to  answer. 

9th.  Question.  Do  yon  know  of  your  own  knowledge  whether  any  other  United 
States  supervisor  was  appointed  for  said  voting  precinct ;  and  if  so,  who  ? — Ans.  Yes ; 
F.  K.  Cleuients  was  appointed. 

10th.  Question.  Do  you  know  of  your  own  knowledge  why  he  did  not  act  as  such  f — 
Ans.  I  do  not. 

Two  police  oflBcers,  George  W.  Dunn  and  J.  M.  Young,  were  called  to 
contradict  Lewis  as  to  his  continuous  attendance  at  the  polls.  Dunn 
says  Lewis  was  at  the  polls  only  about  an  hour  and  a  half  in  the  morn- 
ing and  left ;  that  he  returned  late  in  the  evening.  In  this  he  contra- 
dicts not  only  Lewis  but  all  the  witnesses  of  contestee,  and  shows  him- 
self wholly  unworthy  of  credit.  He  was  himself  at  the  polls  all  day. 
He  can  not  name  a  single  colored  man  who  voted  the  Democratic  ticket. 
He  knows  nothing  of  the  political  complexion  of  the  police  force,  but 
can  not  name  a  Republican  on  it.  He  says  no  one  could  have  seen  the 
ballots  except  the  judge  who  received  tbem.  This  judge,  who  of  all  men 
in  Petersburgh  could  have  testified  in  relation  to  the  action  of  Lewis  on 
that  day,  was  not  called  as  a  witness.  Nor  was  either  one  of  the  other 
judges  called  to  sustain  his  handiwork  with  his  oath.  The  clerks  like- 
wise abstained  from  asserting  on  the  witness  stand,  where  they  would 
have  been  subjected  to  a  cross-examination,  the  legality  of  their  acts. 
Two  representatives  of  the  interests  of  contestee  kept  tally  of  his  vote 
at  the  polls  ;  and  three  men  represented  Arnold  in  a  similar  capacity. 
These  men  were  engaged  in  the  same  capacity  for  their  candidates  as 
Mr.  Lewis  was  for  contestant.  They  necessarily  came  in  contact  with 
Mr.  Lewis  during  the  day,  but  not  one  of  them  is  called  as  a  witness. 
Their  names  appear  on  page  571  of  the  record.  Their  silence  confirms 
the  testimony  of  Mr.  Lewis,  were  confirmation  necessary. 

The  other  policeman,  Mr.  Young,  noticed  Lewis  "on  account  of  his 
being  around  there  and  taking  an  active  part  in  the  canvass  and  elec- 
tion," but  says  he  left  two  or  three  times  during  the  day  the  door  where 
they  were  voting.  This  virtually  corroborates  Lewis  as  to  his  position 
at  the  door,  and  the  only  difference  between  them  seems  to  be  whether 
Lewis  left  the  door  once  only,  as  he  says,  or  twice,  as  stated  by  Young. 
He  heard  some  colored  men  with  folded  ballots  say  among  themselves 
that  they  were  going  to  vote  for  Langston.  Evidently  he  did  not  hear 
colored  men  say  anything  about  voting  for  anyone  else,  for  he  is  silent 
as  to  that.  He  says  Lewis  was  standing  on  a  huckster  bench  in  front 
of  the  door  most  of  the  time  with  his  face  towards  the  ballot-box  and 
that  there  was  no  obstruction  between  him  and  the  box.  He  says 
Dunn  and  Gibbons,  two  Democrats  not  officers  of  election,  were  inside 
of  the  polling  place. 

With  the  friends  of  contestant  studiously  excluded  from  witnessing 
the  count,  and  with  284  votes  proved  to  have  been  cast  for  him,  while 
the  returns  gave  him  only  174,  this  box  stands  impeached  and  must  be 
rejected. 

In  the  caseof  Washburn  ««.  Yoorhees  (3  Congressional  Election  Cases, 
G2),  it  was  held  that "  where  in  one  precinct  but  143  votes  were  returned, 
while  173  were  cast  for  contestant  (a  difference  of  only  30  votes),  and 
in  another  20  less  were  returned  than  were  proved,  and  the  officers  were 
shown  to  be  violent  partisans  of  the  party  in  whose  favor  the  frauds 
were,  the  whole  vote  of  the  precinct  was  rejected." 

In  the  case  of  Bisbee  vs.  Finley  (6  Congressional  Election  Cases,  177), 
where  259  votes  were  cast  at  one  precinct  for  a  candidate,  and  only  69 
were  returned  for  him,  it  was  said  in  the  report:  "That  any  consider- 
able number  of  votes  proven  for  one  candidate  in  excess  of  the  number 


452  LANGSTON   VS.    VENABLE. 

returned  for  him,  has  always  been  regarded  as  evidence  of  fraud,  and  a 
legitimate  method  of  impeaching  the  returns.  We  think  it  is  sufficient 
to  exclude  the  return  from  the  count  without  further  evidence." 

Applying  the  law  thus  laid  down  and  the  law  as  quoted  from  Paine 
on  Elections,  at  the  beginning  of  this  report,  the  account  will  stand 
thus: 

Plurality  for  Venable,  brought  forward ^.  487 

Deduct  plurality  for  Venable,  Third  ward  returned,  which  is  equivalent  to  throw- 
ing out  the.precinct 344 

Leaves  plurality  for  Venable 143 

But  Laugston  has  proved  votes  cast  for  him  at  this  precinct 264 

The  contestee  has  failed  to  prove  any  vote  cast  for  him,  thus  making  a  plurality 
in  favor  of  Langston  of 141 

SIXTH  WARD. 

The  returns  in  this  ward  give  Venable  352,  Arnold  160,  and  Langs- 
ton  139  votes,  a  plurality  in  favor  of  Venable  over  Langston  of  213. 
In  this  ward  the  negroes  have  a  large  majority,  and  the  evidence  shows 
tliat  they  were  active  and  united  supporters  of  contestant.  The  con- 
testant placed  upon  the  stand  283  witnesses,  each  of  whom  swears  that 
he  is  a  qualified  and  duly  registered  voter  of  the  Sixth  ward,  and  that 
he  voted  for  contestant  on  November  6,  1888.  Each  one  was  cross-ex- 
amined by  counsel  for  contestee.  This  clearly  shows  that  the  poll  must 
\)e  rejected  and  the  parties  left  to  other  evidence  than  the  falsified  re- 
turns to  establish  their  vote.  The  judges  appointed  in  May  for  this 
ward  were  all  political  opponents  of  contestant,  and  all  served. 

Not  a  vote  was  challenged  on  either  side  during  the  day  of  election. 
Although  the  colored  voters  at  this  precinct  stood  to  the  white  voters 
in  the  ratio  of  nearly  three  to  one,  Mr.  Akers  and  his  associates  thought 
it  fair  to  put  up  in  front  of  the  polls  a  barrier  to  separate  the  negroes 
from  the  whites  in  two  lines,  one  upon  the  right  hand  and  the  other 
on  the  left  hand,  and  then  to  receive  the  ballots  from  each  side  alter- 
nately, a  white  man's  ballot,  and  then  a  negro's  ballot;  and  so  on 
throughout  the  day,  unless  some  colored  man  who  wished  to  vote  the 
white  men's  ticket  could  get  permission  to  fall  in  in  the  line  of  whites. 
The  plain  consequence  of  enforcing  such  a  rule  is  evidenced  by  the  fact 
that  out  of  2G5  registered  white  voters,  all  voted  except  14;  and  out  of 
709  registered  colored  voters,  there  were  308  (nearly  half)  who  did  not 
vote.  (Aker's  deposition,  Record,  p.  831  et  seq.)  Consequently,  when 
the  polls  were  closed  at  sunset  there  stood  in  line  at  the  door  of  the 
polling-place  124  Republican  voters  with  Langston  ballots  fepen  in  their 
hands,  anxious  to  vote,  and  denied  their  right  of  suffrage.  (Record,  pp. 
196, 197.)  Six  others,  whose  names  are  on  page  196,  had  become  dis- 
heartened and  gone  away. 

—Thofuas  H.  Brown,  witness  for  the  contestant,  being  duly  sworn,  said: 

1st.  Question.  State  your  name,  age,  and  residence. — Answer.  Thomas  H.  Brown  ; 
I  am  twenty-four  years  old,  and  live  at  No.  218  Halifax  street,  Petersburg,  Va. 

2d.  Question.  Were  you  a  voter  in  6th  ward  on  election  day,  Nov.  6th,  1888? — An- 
swer. I  was. 

3d.  Question.  If  you  are  willing  to  waive  your  legal  right,  please  state  if  you  voted 
for  Congressman  on  that  day;  and  if  so,  for  whom? — Answer.  I  voted  for  John  M. 
Langston. 

4th.  Question.  When  did  you  reach  the  polls,  and  how  long  did  you  remain  there 
<luriug  the  day  ? — Answer.  I  went  to  the  polls  Ijetween  half  past  tive  and  six  o'clock 
in  the  morning  and  remained  all  day,  except  for  about  fifteen  minutes. 


LANGSTON   VS.    VENABLE.  453 

5tli.  Question.  What  were  you  doing  during  the  day  ? — Answer.  Assisting  keeping 
the  books. 

Gth.  Question.  In  keeping  what  books? — Answer.  In  keeping  the  names  of  the  col- 
ored voters  who  voted  for  Harrison,  Morton,  and  Langston. 

7th.  Question.  How  could  you  tell  that  they  voted  for  Langston? — Answer.  Because 
I  saw  their  tickets  when  they  were  given  to  the  judge  of  election,  as  each  of  then) 
voted  an  open  ballot. 

8tli.  Question.  Where  were  you  standing;  how  far  from  the  ballot-box,  and  how 
far  from  the  judge  who  received  the  ballots? — Answer.  I  was  standing  within  two 
feet  of  the  door,  and  about  four  feet  from  the  judge  when  at  the  ballot-box 

9th.  Question.  Were  the  ballots  open  when  handed  to  the  judge? — Answer.  Those 
that  I  refer  to  when  I  say  voted  for  Langston. 

lOtb.  Question.  Do  you  mean  that  those  who  voted  for  Langston  handed  their  bal- 
lots open  to  the  judge? — Answer.  I  do. 

11th.  Question.  Could  you  see  the  ballot  until  the  judge  put  it  in  the  ballot-b  x  ? — 
Answer.  Yes,  sir. 

12th.  Question.  Were  the  names  of  the  voters  as  they  handed  their  open  ballots  to 
the  judge  recorded  in  your  book  ? — Answer.  They  9rere. 

13th.  Question.  How  many  names  were  recorded  in  the  book  as  voting  for  John  M. 
Langston  ? — Answer.  Three  hundred  and  seventy. 

14th.  Question.  How  did  the  voters  approach  the  polls ;  that  is,  how  were  they  ar- 
ranged ? — Answer.  They  formed  a  line. 

15th.  Question,  Were  there  more  than  one  line? — Answer.  There  were  two  lines, 
one  on  each  side  of  a  plank ;  one  for  the  white  or  Democratic  voters,  the  other  for  the 
colored  voters. 

16th.  Question.  Were  the  white  and  colored  voters  voted  equally  ;  that  is,  did  it 
take  any  more  time  to  vote  one  than  it  did  the  other  ? — Answer.  I  think  not,  because 
when  the  colored  voter  came  up  to  vote  it. seemed  to  be  a  great  difficulty  in  finding 
his  name,  and  seemingly  the  white  voters  were  recognized  on  sight. 

17th.  Question.  About  how  long  did  it  take  to  vote  a  colored  voter  after  ho  had 
given  his  name  ? — Answer.  In  some  cases  from  about  one  to  three  minutes,  and  in 
others  longer. 

18th.  Question-  About  how  long  did  it  take  to  vote  a  white  voter  after  he  had 
given  his  name? — Answer.  About  one  and  a  half  minutes,  except  occasionally  there 
would  be  some  difficulty  and  it  would  take  possibly  two  minutes. 

19th.  Question.  Were  you  in  line  ? — Answer.  No,  sir ;  I  was  not  in  line. 

20th.  Question.  Were  you  at  the  polls  when  they  closed  ? — Answer.  I  was  at  the 
polls  when  the  judge  gave  notice,  and  a  few  moments  the  polls  would  be  closed. 
Then  I  left  my  stand,  which  was  upon  a  box  within  two  foot  of  the  door,  and  began 
to  get  the  men  to  retain  their  places  until  they  received  from  me  what  steps  they 
were  to  take. 

2l8t.  Question.  Were  you  there  when  the  polls  did  close  ? — Answer.  Close  enough 
to  see  the  doors  when  they  were  shut. 

22d.  Question.  Were  there  voters  in  both  lines  ? — Answer.  I  think  not,  because 
early  in  the  day  the  line  on  white  or  Democratic  side  was  exhausted,  and  the  men  as 
a  general  thing  afterwards  were  voted  as  they  came  to  the  polls  on  that  side. 

2:3d.  Question.  What  men  ? — Answer.  The  white  men,  or  the  supposed  Democrats. 

24th.  Question.  Was  there  anybody  in  the  Eepublican  line  when  the  polls  closed? 
— Answer.  There  were. 

25th.  Question.  Do  you  know  how  many? — Answer.  I  could  not  Bay  exactly,  but 
there  were  between  one  hundred  and  one  hundred  and  fifty. 

26th.  Question.  How  far  did  the  lino  extend  ? — Answer.  From  Dr.  Stillwell's  office 
down  to  or  below  T.  P.  Noble's  barber  shop, 

27th.  Question.  How  came  the  line  to  be  from  Dr.  Stillwell's  office  down  to  Noble's 
barber  shop  ? — Answer.  Because  when  the  polls  closed  the  men  in  line  seemed  to  be 
anxious  to  deposit  their  ballots,  so  we  thought  in  order  to  know  who  they  were  that 
wanted  to  A^ote,  so  we  simply  had  them  to  turn  the  line  and  give  their  tickets,  with 
their  name  on  them,  to  Messrs.  Robinson,  Smith,  and  Brewer. 

28th.  Question.  Did  you  receive  any  tickets,  write  the  names  of  the  voter  on  his 
ticket,  or  record  the  names  of  any  of  these  men  who  had  not  voted  ? — Answer.  I  did 
not,  but  simply  showed  the  leader  of  the  line  where  to  go. 

29th.  Question  ^  Did  the  others  who  were  left  in  the  line  when  the  polls  closed  fol- 
low the  leader  in  regular  order  across  to  Dr.  Stillwell's  office  and  form  the  line  to 
which  you  have  referred?— Answer.  When  the  polls  closed  all  of  those  who  had  not 
voted  seemed  to  be  anxious,  and  followed  as  regular  as  they  could. 

Cross  examination : 
19th.  Question.  Were  you  close  by  the  polls  on  said  day  from  the  time  they  were 
opened  to  the  time  they  were  closed,  with  the  exception  of  the  few  minutes  you 
spoke  of  in  your  direct  examination? — Answer.  I  were. 


454  LANGSTON  VS  VENABLE. 

20th.  Question.  You  said  iu  your  direct  exaiuiiiatlon  that  you  took  a  list  of  men 
who  voted  for  Langston  during  that  day  at  6th  ward.  Do  you  mean  that  with  the 
exception  of  the  few  luiuutes  above  referred  to  you  took  down  the  names  of  all  the 
men  who  voted  for  Langston  at  said  time  and  place;  or,  in  other  words,  that  you  iu 
home  way  kept  an  accurate  account  of  the  men  who  voted  for  Langston  ? — Answer. 
I  said  that  I  assisted  in  keeping  the  book,  and  I  say  now  that  we  kept  an  accurate 
account  of  the  Langston  vote  and  the  whole  colored  vote  at  6th  ward  in  said  elec- 
tion. 

21st.  Question.  Whom  did  you  assist  in  keeping  the  book? — Answer.  Pleasant 
Goodwyu. 

22d.  Question.  What  did  you  do  towards  keeping  the  book  ? — Answer.  I  had  a  list 
of  the  colored  voters  in  6th  ward,  and  as  they  voted  Pleasant  would  write  the  name, 
while  1  would  check  them,  but  this  was  doi.e  alternately  between  him  and  I. 

23d.  Question.  How  many  names  did  you  have  on  your  book  referred  to  ? — Answer. 
As  a  whole,  we  had  four  hundred  and  eight. 

24th.  Question.  How  many  names  did  you  have  on  your  list  of  the  colored  voters 
in  6th  ward  ?— Answer.  I  just  said  that  we  had  four  hundred  and  eight,  as  we  were 
only  keeping  iu  that  book  the  colored  voLers. 

25th.  Question.  How  many  colored  men  voted  at  said  polls  on  said  day? — Answer. 
Wc  recorded  the  names  of  four  hundred  and  eight. 

26th.  Question.  You  said  iu  your  answer  to  the  22d  question  above  that  you  had  a 
list  of  the  colored  voters  in  6th  ward.  How  many  names  were  on  that  list  ? — Answer. 
There  were  six  hundred  and  forty-seven. 

27tli.  Question.  How  many  colored  men  voted  during  that  day  who  did  not  vote 
for  Langston  ? — Answer.  There  were  408  colored  votes  cast,  38  of  which  we  are  not 
certain  who  they  voted  for. 

28th.  Question.  Do  you  wish  to  be  understood  as  saying  that  you  know  that  370 
votes  were  cast  for  Langston  at  said  time  and  place? — Answer.  I  do. 

29th.  Question.  Did  every  one  of  the  370  men  vote  an  open  ballot? — Answer.  They 
did,  except  one. 

3Uth.  Question.  And  did  you  read  the  name  of  John  M.  Langston  on  each  one  of 
these  ballots? — Answer.  We  did. 

3l8t.  Question.  Is  it  not  a  fact  that  several  colored  men  voted  in  what  you  have 
termed  the  white  or  Democratic  line  ? — Answer.  They  did. 

34th.  Question.  How  many  white  men  do  you  suppose  voted  ? — Answer.  I  do  not 
know. 

35th.  Question.  Do  you  know  of  a  single  white  man  that  voted  for  Langston  ? — 
Answer.  I  can't  say  that  I  do. 

36th.  Question.  How  many  colored  men  Qo  you  suppose  voted  for  Venable? — An- 
swer. I  can't  say. 

37th.  Question.  How  many  white  men  do  you  suppoae  voted  for  R.  W.  Arnold? — 
Answer.  I  have  no  idea. 

38th.  Question.  How  many  colored  men  do  yon  suppose  voted  for  E.  W.  Arnold  ? — 
Answer.  I  do  not  know. 

39th.  Question.  Then,  for  all  you  know  or  believe  to  the  contrary,  the  oflBcial  re- 
turn of  the  number  of  votes  cast  for  Arnold  must  be  correct  ? — Answer.  I  don't  say 
that  either. 

40th.  Question.  Then,  for  all  you  know  to  the  contrary,  the  oflScial  return  of  the 
number  of  votes  cast  for  R.  W.  Arnold  must  be  correct  ? — Answer.  I  don't  say  that. 

41st.  Question.  Then  what  do  yon  say  ? — Answer.  I  say  that  we  kept  a  record  of 
colored  men  who  voted  for  John  M.  Langston,  and  we  did  not  keep  either  Venable's 
or  Arnold's  vote. 

42d.  Question.  You  said  in  answer  to  the  25th  and  27th  questions  on  cross-exami- 
nation that  408  colored  men  voted  Jit  said  polls  on  said  day,  38  of  whom  you  were 
not  sure  of  as  having  voted  for  Langston  ;  then  must  you  not  know  with  reasonable 
certainty  how  many  colored  men  voted  for  Arnold? — Answer.  Not  necessarily. 

43d.  Question.  How  many  colored  men  voted  for  either  Arnold  or  Venable? — 
Answer.  1  did  not  keep  the  record  of  either  Arnold  or  Venable  vote. 

44th.  Question.  Did  you  n«)t  say  that  you  kept  a  record  of  all  the  colored  voters 
who  voted  1  hat  day  at  6th  ward  ? — Answer.  We  did  keep  a  record  of  the  colored  vote 
at  said  ward  on  said  day. 

45th.  Question.  Have  you  not  stated  how  many  colored  votes  were  polled  for  Lang- 
ston ? — Answer.  I  said  that  we  kept  a  record  of  the  Langston  votes  and  all  colored 
voters  that  voted  on  sai<l  day  at  said  place. 

46th  Question.  Was  or  was  not  this  an  accurate  record? — Answer.  We  kept  it 
accurat(i^  according  to  «ur  judgment.  I  mean  to  say  that  we  taken  the  names  of  all 
colored  lucn  who  voted  at  said  poll  on  said  day. 

54th.  Question.  How  many  of  them  voted  for  John  M.  Langston? — Answer.  Out  of 
the  408  mentioned  by  me  370  were  Langston  ballots. 


LANGSTON   VS.    VENABLE.  455 

55th.  Question.  Were  408  all  the  colored  meu  who  you  said  voted  at  said  polls  on 
said  day  ? — Answer.  408  is  all  I  said. 

56th.  Question.  In  yonr  answer  to  53d  question  on  cross-examination,  you  stated 
that  you  took  the  names  of  all  the  colored  men  who  voted  at  said  polls  on  said  day. 
Please  state  unequivocally  how  many  of  those  men  voted  for  Langstou  ? — Answer.  I 
think  I  have  told  you  in  my  former  answer  how  many  men  that  we  taken  as  Lang- 
ston  votes ;  there  may  have  heen  more. 

57th.  Question.  I  repeat  the  56th  question. — A.  I  can't  tell  you  any  nearer  than  I 
have  in  ray  foimer  answers. 

58th.  Question.  Were  three  hundred  and  seventy  all  the  colored  meu  who  voted 
for  Langston.  If  more  voted  for  him  state,  as  near  as  you  can,  how  many  more,  and 
if  less  voted  for  him,  state  as  near  as  you  can,  how  many  less. — Answer.  I  can't  say 
that  more  did  vote  for  him,  because  I  only  kept  the  names  of  those  who  voted  an 
open  ballot ;  there  may  have  been  others  who  voted  for  him. 

59th.  Question.  Dnring  your  examination  you  have  testified  more  than  once 
that  those  men  who  voted  for  Langston  voted  open  ballots  ;  then  do  you  wish  to 
retract  that  statement  now? — Answer.  I  do  not,  but  simply  add  to  it  by  saying 
that  we  took  the  names  of  those  who  voted  an  open  ballot  with  John  M.  Langston's 
name  on  it,  and  we  can  vouch  for  them ;  of  course,  we  could  not  say  anything  about 
those  who  voted  the  closed  ballot. 

60th.  Question.  Yon  have  stated  that  you  took  the  namee  of  all  the  colored  men 
who  voted  in  6th  ward  on  said  day;  state  how  many  of  them  you  know  did  not  vote 
for  Langston. — Answer.  One. 

61st.  Question.  State  how  many  of  them  you  know  did  vote  for  Langston. — 
Answer.  I  think  I  have  said  before  that  370  men  were  recorded  by  us  as  having  voted 
for  Langston. 

6'2d.  Question.  You  were  not  requested  to  say  how  many  men  were  recorded  by 
you  as  having  voted  for  Langston.  You  were  asked  to  state  how  many  men  you  hnow 
voted  for  Langston.     Please  answer  the  question  asked  you  and  say  no  more. 

Answer.  I  can  tell  you  nothing  more  than  what  I  have  told  you,  as  I  think  that 
in  saying  that  we  recorded  370  shows  at  once  my  knowledge  of  the  Langston  vote  in 
said  ward. 

63d.  Question.  Then  do  yon  know  of  your  own  personal  knowledge  that  Langston 
got  370  votes  in  said  ward  ?  Be  kind  enough  to  answer  categorically. — Answer.  He 
did. 

64th.  Question.  And  you  do  not  know  who  received  the  balance  of  the  colored 
votes  cast  in  said  ward  (37  in  number)  ? — Answer.  I  do  not. 

65th.  Question.  How  many  white  persons,  as  near  as  you  can  judge,  voted  at  said 
ward  on  said  day  ? — Answer.  I  can't  say. 

66th.  Question.  You  are  asked  for  an  approximate  answer  only  ? — Answer.  I  have 
no  idea. 

67th.  Question.  Did  as  many  as  500  white  persons  vote  at  said  ward  on  said  day  t — 
Answer.  I  don't  know. 

68th.  Question.  Do  you  mean  to  say  that  you  profess  to  be  a  man  of  any  intelli- 
gence and  staying  at  the  polls  all  day,  as  you  said  you  did,  and  recording  all  the  col- 
ored votes  cast  there  that  day,  as  you  said  you  did,  you  do  not  know  that  as  many 
as  500  white  persons  did  not  vote  at  said  polls  on  said  day  ? — Answer.  It  matters  not 
whether  I  profess  to  have  any  intelligence,  I  did  not  take  notice  of  the  white  vote, 
therefore  I  answered  "I  don't  know." 

69th.  Question.  Did  as  many  as  500  white  persons  vote  in  said  warden  said  day  ? — 
Answer.  I  don't  know. 

70th.  Question.  Do  the  white  voters  in  said  ward  outnumber  the  colored  voters  T — 
Answer.  They  do  not. 

71st.  Question.  Did  as  many  as  648  white  persons  vote  in  said  ward  on  said  day  ?— 
Answer.  I  think  not. 

72d.  Question.  Did  as  many  as  600  ? — Answer.  I  think  not. 

73d.  Question.  Did  as  many  as  550  ?— Answer.  I  don't  know. 

74th.  Question.  Did  more  than  5  white  persons  vote  at  said  ward  on  said  day  t — 
Answer.  They  must  have. 

75th.  Question.  Do  you  mean  to  say  the  most  accurate  estimate  you  can  form  as  to 
the  number  of  white  persons  who  voted  at  said  ward  on  said  day  is  between  5  and 
600? — Answer.  I  do  not  mean  anything  of  the  kind. 

76th.  Question.  Then  please  explain  what  you  do  mean. — Answer.  As  I  kept  uo 
record  of  the  white  vote  iu  said  ward  I  do  not  propose  either  by  estimate  or  otherwise 
to  say  anything  about  it. 

77th.  Question.  Counsel  for  contestee  informs  you  that  he  has  a  legal  right  to  ask 
you  such  questions  as  the  above  in  order  to  test  your  credibility  and  the  accuracy  of 
your  memory,  and  that  if  you  refuse  to  answer  them  you  take  the  law  into  your  own 
hands.     Do  you  still  persist  in  refusing  to.  give  even  an  approximate  estimate  as  to 


456  LANGSTON   VS.   VENABLE. 

the  number  of  white  men  who  voted  in  said  ward  on  said  day  ? — Answer.  I  do  not 
object  to  answering  any  question  concerning  things  of  which  I  have  any  knowledge, 
but  do  not  think  that  I  can  do  justice  to  myself  or  anybody  else  to  try  even  to  ap- 
proximate anything  that  I  paid  no  attention  to. 

We  have  given  these  extensive  extracts  from  the  testimony  of  this 
intelligent  witness  for  the  striking  contrast  it  atfbrds  between  a  gentle- 
manly and  courteous  witness  and  a  desperate,  browbeating  attorney. 
Much  more  cross-examination  follows  of  the  same  character,  giving 
grounds  for  suspicion  that  for  lack  of  a  meritorious  defense  contestee 
tried  to  prevent  by  delay  as  far  as  possible  the  calling  of  witnesses. 

This  testimony  is  corroborated  by  that  of  Pleasant  Goodwyn,  who 
said: 

Ist.  Question.  What  is  yourname,  age,  and  residence? — Answer.  Pleasant  Goodwyn ; 
my  age  is  32  years,  and  residence  32b  Federal  street. 

2d.  Question.  Were  you  a  voter  in  the  6th  ward,  city  of  Petersburgh,  on  election- 
day,  Nov.  6th,  1888  ? — Answer.  Yes,  sir, 

3d.  Question.  If  you  are  willing  to  waive  your  legal  right,  please  state  if  you  voted 
for  Congressman  on  that  day,  and  if  so,  for  whom  yon  voted. — Answer.  I  did,  and 
voted  for  John  M.  Langston. 

4th.  Question.  When  did  you  reach  the  polls,  and  how  long  did  you  remain  there 
during  the  day  ? — Answer.  I  got  there  about  quarter  to  six  in  the  morning  and  re- 
mained until  the  closing  of  the  polls  at  night. 

5th.  Question.  State  how  the  polls  were  opened,  that  is,  what  was  said  and  done 
by  the  judges. — Answer.  I  think  the  polls  were  opened  about  quarter  to  seven,  and 
at  that  time  the  judge  said  Oh  yes.  Oh  yes,  the  polls  are  opened,  and  then  a  strip  of 
board  was  nailed  across  the  door,  and  a  plank  extended  down  to  divide  the  line.  Be- 
fore voting  they  arrested  Richard  Tucker  from  the  door. 

6th.  Question.  State  fully  all  you  saw  and  heard  relative  to  the  arrest  of  Tucker? 
— Answer.  I  saw  Tucker  standing  at  the  door  when  the  judge  said  you  all  get  back ; 
he  being  in  front  he  backed  backwards  a  short  distance,  and  the  judge  said  you  all 
must  get  out  from  there,  and  he  seemed  that  he  could  get  no  further  back,  as  the  crowd 
was  behind  him.  Supervisor  Scott  called  Mr.  Stutz  to  take  this  man  away,  and  he 
did  not  return  no  more.  Then  after  that  Mr.  Berry  came  to  the  noils  and  said,  I  am 
supervisor  of  this  precinct;  Mr.  Akers  said,  I  don't  know  so  much  about  that;  Mr.  Berry 
said,  do  you  object  to  my  performing  my  duty  as  supervisor?  Mr.  Akers  says,  I  .am 
informed  that  Mr.  Minetree  is  the  supervisor  of  this  precinct.  Mr.  Berry  said  then, 
do  you  object  to  me,  for  I  have  got  my  papers  to  show  that  I  am  the  supervisor  of 
this  precinct  ?  Mr.  Akers  says,  I  don't  object  to  you,  but  you  can  see  Supervisor 
Scott.  Mr.  Berry  went  away,  and  when  he  came  back  him  and  Mr.  Scott  was  together, 
and  went  into  the  precinct. 

7th.  Question.  Did  you  see  any  disorderly  conduct  on  the  part  of  Tucker,  or  did  he 
refuse  to  obey  the  judge  when  told  to  get  back  ?— Answer.  I  did  not. 

8th.  Question.  Did  Tucker  vote  at  any  time  during  the  day  ? — Answer.  No,  sir. 

9th.  Question.  When  the  polls  opened  were  the  ballot-boxes  in  sight  ? — Answer. 
Yes,  sir. 

10th.  Question.  Were  the  ballot-boxes  opened  and  held  np  or  so  placed  that  it  could 
be  seen  that  they  were  empty  ? — Answer.  The  ballot-box  was  not  held  up  and  opened. 

11th.  Question.  What  were  j'ou  doing  at  the  polls  all  day  ? — Answer.  I  was  taking 
the  names  of  the  colored  voters  who  voted  for  John  M.  Langston. 

12th.  Question.  Did  you  take  the  names  of  all  the  colored  voters  who  voted  at  6th 
ward  on  election  day,  Nov.  6,  1888  ? — Answer.  I  did. 

13th.  Question.  How  could  you  tell  when  a  colored  voter  voted  for  John  M.  Lang- 
ston ? — Answer.  Because  I  read  the  name  of  John  M.  Langston  on  the  ticket  and  saw 
them  handed  to  the  judge  and  saw  him  put  it  into  the  box. 

14th.  Question.  Where  were  you  standing  and  how  could  you  see  each  ticket? — 
Answer.  I  was  standing  in  a  chair  very  near  the  door  of  the  precinct  where  I  could 
see  every  man's  ticket  that  would  have  it  open. 

15th.  Question.  How  near  were  you  to  the  ballot-box  and  how  near  to  the  judge 
who  received  the  ballots? — Answer.  I  was  as  close  to  the  judge  as  the  wall  of  the 
door  would  permit  me;  between  him  and  the  box. 

16th.  Question.  Could  yon  see  each  ballot  from  the  time  it  was  handed  to  the  judge 
until  he  put  it  into  the  ballot-box  ? — Answer.  I  could  see  every  ballot  that  was  handed 
to  the  judge  that  day. 

17th.  Question.  How  was  it  or  why  was  it  that  you  could  see  the  name  of  John  M. 
Laugston  on  the  ballots? — Answer.  Because  the  ballots  were  open,  that  I  could  read 
them  and  see  the  name  of  John  M.  Langston. 

18th.  Question.  Were  these  ballots  opened  and  so  held  for  the  purpose  of  allowing 


LANGSTON   VS.    VENABLE.  457 

you  to  see  them  ? — Auswer.  They  were  opened  for  the  x>urpose  that  I  might  see  them 
and  record  their  names  as  to  whom  they  voted  for. 

19th.  Question.  Are  you  sure  that  the  opened  ballots  which  you  saw  were  handed 
to  the  judge  and  it  went  into  the  ballot-box  ? — Answer.  Yes,  sir ;  I  am  sure  that  every 
ballot  that  I  saw  handed  to  the  judge  went  in  the  ballot-box. 

20th.  Question.  Did  you  record  the  name  of  every  voter  who  voted  an  open  ballot 
for  John  M.  Langston  ? — Answer.  I  did  record  every  colored  voter  who  voted  for  John 
M.  Langston  at  6th  ward  precinct. 

2l8t.  Question.  Do  you  mean  to  say  that  you  recorded  the  name  of  every  colored 
voter  who  voted  for  John  M.  Langston  or  the  name  of  every  colored  voter  who  voted 
an  open  ballot  for  John  M.  Langston  ? — Answer.  I  mean  to  say  that  I  recorded  every 
name  who  voted  an  open  ballot  for  John  M.  Langston,  and  also  recorded  every  colored 
vote  cast  on  that  day. 

22d.  Question.  In  what  did  you  record  the  names  above  referred  to  ? — Answer.  I 
recorded  them  in  books  used  for  the  tellers  on  that  day. 

23d.  Question.  How  many  books  did  you  use  ? — Answer.  Four. 

24th.  Question.  Have  you  those  books  in  your  possession  ? — Answer.  I  have. 

26th.  Question.  Please  state  if  these  books  have  been  in  your  exclusive  possession 
siuce  Nov,  6th,  1888,  and  also  whether  all  of  the  names  were  recorded  by  you  your- 
self, and  whether  there  have  been  any  additions  to  or  any  subtractions  from  the  names 
in  said  books. — Answer.  These  books  have  not  been  in  my  exclusive  possession  since 
Nov.  6,  but  I  do  certify  that  I  wrote  four  hundred  and  eight  names  in  those  books,  and 
there  have  been  none  added  to  or  subtracted  from  them.    The  books  are  here  filed. 

27t]i.  Question.  Please  take  said  books  and  state  if  every  name  is  in  your  own 
writing. — Answer.  (Here  witness  took  the  books  and  answered  as  follows:)  Yes,  sir; 
I  certify  that  all  these  names  are  my  handwriting. 

28th.  Question.  Have  you  seen  these  books  before  to-day  ? — Answer.  Yes  ;  I  have. 

29th.  Question.  Have  you  examined  them  to-day  f  If  so,  state  when. — Answer. 
Yes ;  I  have  examined  them  to-day  while  here. 

30th.  Question.  Did  you  examine  them  before  you  took  the  stand  ? — Answer.  I  did. 

3l8t.  Question.  Please  give  the  names  of  those  voters  whom  you  recorded  as  voting 
an  ojjen  ballot  for  John  M.  Langston,  refreshing  your  memory,  if  necessary,  from  the 
record  you  kept. 

Answer.  All  the  names  recorded  in  Exhibits  A,  B,  C,  and  D,  and  filed  as  part  of  my 
deposition,  voted  an  open  ballot  for  .John  M.  Langston  as  member  of  Congress  from 
this  4th  Congressional  district  of  Virginia,  with  the  following  exceptions,  namely  : 
Sip  O.  Watson,  Sam'l  Jones,  Ned  Patterson,  Wm.  E.  Prichard,  Abram  Jones,  Thos. 
Parham,  W.  T.  Hicks,  George  Ellis,  Geo.  F.  Hill,  Wyatt  Alfriend,  John  M.  Alfriend, 
R.  H.  Smith,  Emmett  E.  Jones,  Sam'l  Jackson,  David  Perry,  "Wm.  N.  Gunns,  Pleas- 
ant Jackson,  Alfred  Robinson,  Fed  Cooper,  C.  H.  Mabry,  K.  Coleman,  .Tas.  H.  Taylor, 
Wm.  H.  Jordan,  Jos.  Ellis,  Wm.  Wood,  Wm.  H.  Moore,  Robt.  Jones,  Edward  Grigs 
bys,  Beverly  Younger,  Thomas  Butler. 

32d.  Question.  I  see  from  the  exhibits  filed  that  some  of  the  names  have  "  D"  and 
"A"  marked  after  them  ;  what  does  this  mean  ? — Answer.  The  names  that  have  "D  " 
marked  after  them  is  that  they  were  folded  and  marked  "  D  "  for  doubtful,  and  also 
the  letter  "A"  are  for  those  who  voted  an  open  ticket  for  Arnold. 

33d.  Question.  Were  there  any  delays  or  stoppages  in  voting  after  the  polls  opened  ? — 
Answer.  Yes,  sir ;  there  were  four  to  my  knowledge  that  day. 

34th.  Question.  Please  state  for  what  they  were  and  about  how  long  they  contin- 
ued.— Answer.  The  first  stoppage  after  the  polls  opened  were  for  breakfast,  and  the 
time  they  stopped  may  be  a  half  or  three-quarters  of  an  hour.  They  also  stopped  to 
have  the  crowd  moved  back  because  the  colored  line  was  doubled.  The  time  they 
stopped  for  that  I  don't  suppose  was  rhore  than  ten  or  fifteen  minutes.  They  also 
stopped  again  in  looking  for  the  name  of  "  James  W.  Smith."  The  judge  says  he  had 
voted,  and  he  referred  them  to  his  number  and  street,  when  they  found  he  was  cor- 
rect and  voted  him.  The  next  stoppage  was  for  dinner,  and  I  suppose  it  took  about 
a  half  or  three-quarters  of  an  hour. 

35th.  Question.  When  the  judges  stopped  for  breakfast  and  dinner  was  the  voting 
en (irely  suspended? — Answer.  Yes. 

36th.  Question.  You  have  stated  that  there  were  lines.  How  many  and  for  whom 
were  they  ? — Answer.  There  were  two  lines,  one  said  to  be  for  the  white  and  the  other 
for  the  colored;  but  they  voted  some  colored  on  the  white  line. 

37th.  Question.  Did  you  hear  any  objection  raised  to  the  voting  of  colored  voters 
on  that  side  said  to  be  for  white  voters?  I  mean  objection  by  the  judges. — Answer. 
I  did  hear  one  objection,  and  that  was  to  Robert  H.  Harris  by  Judge  Akers.  He 
claimed  that  Harris  had  a  Republican  ticket;  Harris  offered  to  bet  him  that  it  was 
not;  then  Harris  says,  "All  you  have  to  do  is  to  deposit  my  ticket  as  I  give  it  to  yflu;'' 
then  Akers  says,  "You  have  no  right  on  this  side  of  the  line,"  and  deposited  the 
ticket;  Harris  says,  "I now  bet  yon  ten  dollars  that  it  is  a  Republican  ticket  with 
John  M.  Langston  at  the  bottom;'"  Akers  said,  "That  is  all  right,  go  on." 


458  LANQSTON   VS.   TENABLE. 

38th.  Question.  Did  you  see  any  other  colored  man  vote  from  the  same  side  as  did 
Harris?— Answer.  I  did  see  other  colored  men  vote  ou  that  side, 

39th.  Question.  State  who  they  were,  and  whether  any  objection  was  raised  by  the 
judges? — Answer.  I  will  state  those  I  can  remember  who  voted  on  that  side  as 
follows:  Ist.  Nathaniel  Robinson,  Wni.  E.  Prichard,  Robert  H.  Harris,  Wm.  Wood, 
Abram  Jones,  Saui'l  Jones,  Emmett  Shelly,  Henry  Jones,  Geo.  EDis,  C.  H.  Mabry, 
Thos.  Butler.     That  is  all  I  recollect  that  voted  on  that  side. 

40th.  Question.  Could  you  remember  any  others  if  you  referred  to  the  record  you 
keptf  If  so,  please  do  that  to  refresh  your  memory,  and  give  their  !umes. — A.ns\ver. 
I  have  seen  two  names  I  recognize  as  voting  on  the  white  side,  namely,  David  Perry 
and  Thomas  Parham. 

4l8t.  Question.  Do  you  know  why  these  men,  with  the  exception  of  Rob't  H. 
Harris,  were  allowed  to  vote  on  the  side  said  to  be  for  white  voters? — Answer.  No,  sir, 

42d.  Question.  Did  you  see  any  colored  voter  vote  an  open  ballot  for  John  M.  Lang- 
ston  from  that  side  said  to  be  for  white  voters  I — Answer.  I  did  see  three  who  voted 
on  that  side  of  the  whites  who  showed  me  their  ticket,  when  near  the  judge,  and 
then  folded  it  and  handed  it  to  the  judge  whilst  my  eyes  was  upon  them. 

43d.  Question.  Who  were  they? — Answer.  Nathaniel  Robinson,  Robt.  H.  Harris, 
and  Emmett  Shelly. 

44th.  Question.  Did  you  see  any  colored  voter  vote  an  open  ballot  from  that  side 
said  to  be  for  the  white  who  handed  his  open  ballot  for  John  R.  Langston  to  the 
judge  open  so  that  the  judge  knew  it  was  a  Langston  ballot? — Answer.  I  saw  Robert 
Harris,  whom  they  thought  to  vote  with  them,  hand  the  judge  his  ballot,  folded  once, 
and  the  judge  claimed  it  was  a  Republican  ticket. 

4.'ith.  Question.  Did  you  see  the  judge  vote  any  colored  voter  from  the  side  said  to 
be  for  the  white  when  he  knew  that  the  ballot  was  a  Langston  ballot? — Answer.  I 
saw  the  judge  vote  a  man  from  that  side  which  he  claimed  to  know  that  that  was  a 
Republican  ticket  which  the  man  had  just  handed  him, 

46th.  Question.  Did  you  see  any  open  ballots  handed  to  the  judge  by  the  voters  in 
the  colored  line  ? — Answer.  Yes  ;  I  did  see  a  great  many  ballots  handed  to  the  judge 
wide  open,  and  the  judge  says,  "You  must  fold  your  own  ballots,"  and  this  was  doue 
frequently  during  the  day. 

47th.  Question.  Did  you  see  any  ballots  handed  to  the  judge  wide  open  by  any  col- 
ored voter  who  voted  from  the  line  said  to  be  for  the  white  voters? — Answer.  I  did 
see  three  ballots  from  the  whit«  line  which  were  open  for  the  purpose  that  I  may  see 
whom  they  did  vote  for,  and  those  ballots  were  folded  again  and  were  not  removed 
from  their  fingers  until  handed  to  the  judge. 

48th.  Question.  You  have  failed  to  answer  the  question,  which  is  this:  Did  you  see 
any  ballots  handed  to  the  judge  wide  open  by  any  colored  voter  who  voted  from  the 
line  said  to  be  for  the  white  voters? — Answer.  I  did  not. 

49th.  Question.  Were  there,  at  any  time  during  the  day,  two  lines  of  voters,  one 
white  and  one  colored  ? — Answer.  It  was. 

50th,  Question,  How  were  the  men  voted  from  these  lines;  that  is,  how  were  they 
voted,  taking  into  consideration  the  time  required  to  vote  ? — Answer.  These  men  were 
voted  one  white  and  one  colored  until  the  white  line  would  become  exhausted  ;  then 
they  would  vote  colored  from  either  side,  providing  if  they  seemed  to  be  in  sympathy 
with  their  party,  butif  not  they  wouldclaim  that  this  is  not  the  side  for  colored  voters  ; 
it  seems  that  when  a  colored  voter  would  come  it  was  very  hard  to  find  his  name  on 
the  registration  books,  but  as  soon  as  a  white  voter  would  appear  and  hand  his  ticket 
and  call  hisnarae  the  judge  would  very  readily  reply,  "It  is  all  right."  So  it  made  the 
voting  proceed  very  slowly  until  Mr.  Venable  came,  I  think,  about  noonday,  and  says, 
"You  all  must  try  to  vote  these  men."  Then  a  long  string  of  men  were  extending 
from  the  poll-door  near  to  Market  street. 

5l8t.  Question.  Was  the  voting  proceeded  with  any  faster  after  the  remark  to  which 
you  refer  was  made  by  Mr.  Venable? — Answer.  It  was. 

52d.  Question.  Did  it  not  so  continue  until  the  polls  closed? — Answer.  Yes. 

53d.  Question.  Did  you  see  any  colored  voter  refused  his  vote  because  he  was  on 
the  side  said  to  be  for  white  voters  and  sent  around  to  the  colored  line  ? — Answer.  I 
saw  two. 

54th.  Question.  Please  give  their  names, — Answer.  Richard  Wilson  and  Peter  T. 
Smith. 

55th.  Question.  Can  you  state  of  your  own  knowledge  that  it  took  longer  for  a  col- 
ored voter  to  vote  than  it  did  for  a  white  voter  ? — Answer.  I  can  state  that  I  did  not 
hear  the  judge  stop  to  ask  a  white  voter  for  his  number  and  street  during  that  day, 
but  it  were  frequently  done  when  he  come  to  look  for  the  name  of  a  colored  voter. 

56J;h.  Question.  Did  you  see  any  white  voter  delayed  or  kept  waiting  to  vote  after 
he  had  given  his  name  to  the  judge  at  any  time  during  the  day  ? — Answer.  I  did  not. 

57th.  Question.  Can  you  say  about  how  long  it  took  for  a  white  voter  to  vote  ? 
— Answer.  I  can  not  specify  the  exact  time,  because  I  had  no  time  to  designate  him, 


LANaSTON   VS.    VENABLE.  459 

but  to  my  best  judgment  I  don't  think  it  took  more  than  3  to  5  minutes  t<t  vote  any 
white  voter  who  came  to  the  poll  that  day. 

58th.  Question.  How  long  do  you  suppose  it  took  to  vote  a  colored  voter? — An- 
swer. I  know  that  as  soon  as  some  of  the  colored  voters  would  give  their  ballot  to  the 
judge  and  call  their  name  the  judges  would  immediaielj^  say,  "  It  is  all  right,"  aud 
others  would  give  their  ballot  and  call  their  name,  and  the  judge  would  look  on  the 
books  and  then  ask  his  name  over  again,  and  after  asking  would  look  agaiu,  aud 
some  cases  the  judge  were  referred  to  the  number  on  the  registration  book,  which  I 
suppose  would  take  a  space  of  time  from  5  to  10  minutes. 

59th.  Question.  Do  you  swear  that  the  white  voters  were  voted  much  more  rapidly 
than  the  colored  ? — Answer.  I  do  swear  that  the  white  voters,  according  to  my  knowl- 
edge, was  voted  faster  than  the  colored. 

eOth.  Question.  How  long  have  yon  lived  in  Gth  ward  ?— Answer.  About  ten  years. 

61st.  Question.  How  long  or  in  how  many  elections  have  you  served  around  the 
polls? — Answer.  I  have  served  around  the  polls  at  three  elections,  and  stayed  all  day 
each  time. 

62d.  Question.  How  did  the  turnout  of  the  voters  in  the  last  election  compare  with 
the  previous  elections  you  have  seen  ? — Answer.  The  voters  at  the  last  election  turned 
out  fuller  than  I  ever  saw  them. 

63d.  Question.  About  how  many  white  Kepublican  voters  live  in  6th  ward  ? — 
Answer.  I  believe  there  are  between  two  and  three  hundred. 

64th.  Question.  About  how  many  Democratic  voters  ? — Answer.  I  believe  about 
two  hundred  or  more. 

65th.  Question.  About  how  many  colored  voters  ? — Answer.  I  believe  there  are  be- 
tween 700  to  800. 

66th.  Question.  Who  were  the  judges  at  6th  ward  on  last  election  day? — Answer. 
Mr.  Akers,  Eckles,  and  Lewis. 

67th.  Question.  How  many  Democrats  and  how  many  Kepublicans? — Answer.  Two 
Democrats.    Mr.  Eckles  claims  to  be  a  Eepublican. 

68th.  Question.  Was  either  onoof  the  three  judges  friendly  to  John  M,  Langston's 
candidacy  ? — Answer.  Not  that  I  know  of. 

69th.  Question.  Who  were  the  clerks? — Answer.  Mr.  Shelly  and  Kidd. 

7Cth.  Question.  To  what  party  do  they  belong  ? — .\nswer.  Democratic  party. 

Tlst.  Question.  Who  were  the  supervisors? — Answer.  Mr.  Berry  and  Scott.' 

72d.  Question.  To  what  party  do  they  belong? — Answer.  Mr.  Scott  belongs  to  (he 
Democratic  party  and  Mr.  Berry  claims  to  be  a  Eepublican. 

73d.  Question.  Was  Mr.  Berry  friendly  to  the  candidacy  of  John  M.  Langston? — 
Answer.  I  think  he  was  not. 

74th.  Question.  Was  Mr.  Berry  at  the  polls  wheu  they  opeued  t  If  not,  state  when 
he  reached  the  polls. — Answer.  He  was  not  there  when  the  polls  opened,  but  came  in 
the  time  when  the  judges  were  signing  their  names. 

75th.  Question.  Jn  what  ward  does  Mr.  Berry  live,  and  do  you  know  when  he  was 
appointed  supervisor? — Answer,  I  do  not  know  what  ward  ho  lives  in,  neither  do  I 
know  the  time  he  was  appointed  supervisor. 

76th.  Question.  Were  the  tickets  which  yon  saw  printed  "  John  M.  Langston  "  or 
"  John  Mercer  Langston  ?" — Answer.  The  tickets  that  I  saw  and  recorded  had  "John 
M.  Langston  "  on  them. 

77th.  Question.  When  the  polls  closed  how  many  lines  were  in  front  of  the  door  ?— 
Answer.  There  was  two  lines. 

78th.  Question.  Whattwo  lines? — Answer.  The  Democrats  on  one  side  and  the  Ke- 
publicans on  the  other. 

79th.  Question.  Was  there  anybody  in  the  Democratic  line  when  the  polls  clo.sed? 

Answer.  Yes,  sir. 

80th.  Question.  Who  were  they? — Answer.  I  could  not  name  them  personally. 

81st.  Question.  Were  they  white  or  colored  ? — Answer.  Both  white  and  colored. 

8-2d.  Question.  How  came  colored  voters  in  the  line  said  to  be  for  whites  ? — Answer. 
Because  it  was  near  the  closing  of  the  polls  and  the  people  got  as  near  as  possible  to 
see  how  they  were  voting.  The  reason  why,  because  just  before  the  closing  of  the 
I)olls*a  man  said  they  were  voting  ten  to  one,  and  that  caused  the  rush. 

83d.  Question.  Do  you  mean  to  say  there  .were  voters  in  the  Democratic  line  trying 
to  vote  wheu  the  polls  closed? — Answer.  I  do  not. 

84th.  Question.  Were  there  voters  in  the  Republican  line  trying  to  vote  when  the 
polls  closed  ? — Answer.  There  were. 

85th.  Question.  Have  you  any  idea  as  to  the  number  of  men  in  the  line  who  had  not 
voted  when  the  polls  closed? — Answer.  I  suppose  there  may  have  been  120  or  more. 

86th.  Question.  Do  you  swear  that  these  meu  in  line  had  not  voted  during  the 
day  ? — Answer.  Yes ;  I  do. 

87th.  Question.  Did  you  see  any  voters  leave  the  polls  before  voting  because  they 
were  unable  to  vote? — Answer.   I  did. 

88th.  Question.  How  many  and  who  were  they  ? — Answer.  I  know  one  did  go  and 


460  LANGSTON  VS.   VENABLE. 

not  return ;  another  one  started  away,  I  called  him  back  and  asked  the  man  who  was 
next  lo  the  polling  place  to  give  way  for  him,  James  H.  Anderson,  to  vote,  and  he  did 
vote.     The  one  that  went  away  was  named  Henry  Moody. 

89th.  Quesition.  When  the  polls  closed  what  became  of  the  line  of  colored  voters 
who  had  failed  to  vote? — Answer.  They  were  iustrncted  to  keep  in  line  and  go  over 
to  Dr.  Stillwell's  oflSce  and  remain  until  their  names  were  taken  and  also  their  tickets. 

A  cross-examination  commencing  on  February  14andcoutiuuing  until 
February  22,  and  consuming  all  the  time  allowed  by  law  to  contestant 
to  take  evidence  in  this  ward,  and  containing  323  questions,  confirms 
the  above,  and  shows  that  377  voters  were  seen  by  witness  to  deposit 
ballots  for  contestant.  Their  names  were  filed  with  the  notary  and  are 
found  on  pages  280  and  281  of  the  record.  This  evidence  is  further  cor- 
roborated by  that  of  Richard  Townes,  page  282,  and  J.  Yoik  Harris, 
member  of  the  common  council  and  chairman  of  the  ward,  page  291. 

The  only  officer  of  election  called  to  sustain  the  returns  is  Mr.  Akers, 
one  of  the  judges.  He  excuses  the  delay  charged  upon  the  officers  by 
claiming  difficulty  in  finding  names  of  colored  men.  He  says  the  man 
least  familiar  with  the  work  was  given  charge  of  colored  registration 
book ;  why  this  particular  man  he  does  not  say.  He  is  unable  to  find 
on  the  book  more  than  two  colored  men  in  the  ward  of  the  same  name, 
but  swears  that  because  of  the  similarity  of  their  names  it  is  more  dif- 
ficult to  find  colored  than  white  voters. 

It  is  attempted  by  the  testimony  of  the  witness  Akers  to  contradict 
and  break  down  the  facts  established  by  seven  witnesses  called  by  con- 
testant who  were  present  at  the  polls  and  whom  he  disputes  in  detail, 
and  at  least  213  individual  voters  in  excess  of  those  returned  forLang- 
ston,  each  of  whom  swears  he  voted  for  Langston. 

Coming  to  this  poll  with  141  plurality,  contestant's  count  must  be 
increased  by  the  plurality  returned  against  him,  which  is  equivalent  to 
throwing  out  the  poll.    This  adds  to  his  total : 

Vote  brought  forward 141 

Plurality  in  sixth  ward  returned  for  Venable 213 

Add  to  this  vote  proved  for  Langston :i77 

Makes  a  total  plurality  for  Langston  of 731 

Besides  the  votes  cast,  124  colored  men  were  by  the  delay  of  the  offi- 
cers prevented  from  casting  their  ballots. 

F.  N.  Robinson,  witness  for  the  contestant,  being  duly  sworn,  said  on  that  subject : 

1st.  Question.  State  your  age,  residence,  and  occupation. — Answer.  I  am  twenty- 
three  years  old ;  I  reside  at  33  Perry  street,  Petersburg,  Virginia ;  I  am  a  teacher  by 
occupation. 

2d.  Question.  Where  were  you  on  the  6th  day  of  last  November,  election  day  ? — 
Answer.  Was  in  Petersburg,  at  the  bth  ward  most  of  my  time. 

3d.  Question.  State  whether  or  not  you  were  at  6th  ward  polls  most  of  your  time 
that  day. — Answer.  I  was. 

4th.  Question.  State,  if  you  please,  what  occurred,  if  anything,  at  the  close  of  the 
polls  that  day  in  said  ward  in  which  you  took  special  interest  and  part. — Answer. 
When  the  judge  of  election  declared  the  polls  closed  there  were  a  line  of  men  waiting 
to  vote,  and  as  they  were  unable  their  names  were  taken  in  an  office  in  front  of  the 
polls;  I  mean  one  of  the  judges  of  election.  • 

5th.  Question.  State,  if  you  please,  who  took  the  names  of  the  persons  to  whom 
you  refer  as  not  being  able  to  vote. 

Answer.  I  did,  sir. 

6th.  Question.  Were  you  or  not  assisted  in  that  labor:  if  so,  by  whom  ? 

Answer.  I  was,  by  Mr.  Andrew  J.  Smith  and  David  Brewer,  one  more.  Brown,  I 
don't  know  his  first  name,  and  Blenu,  I  don't  know  his  first  name. 

7th.  Question.  State  fully  what  was  done. — Answer.  When  the  polls  closed  upon  a 
line  of  men,  Andrew  J.  Smith,  David  Brewer,  and  myself,  being  loyal  Republicans, 
felt  it  our  duty  to  note  all  men  that  was  unable  to  vote ;  we  commenced  by  receiving 
the  names  of  those  who  had  held  the  ballots,  counted  and  sealed  up  the  same,  writ- 
ing tlie  names  of  the  persons  who  held  tlio  ballots  on  the  back  of  the  ballot,  and  th« 
package  and  book  in  which  I  took  the  names  were  preserved. 


LANGSTON   VS.    VENABLE.  461 

The  books  containing  the  names  of  these  parties  were  filed  with  the 
notary  with  the  residence  of  each,  and  are  in  the  possession  of  the  coui- 
inittee,  thus  furnishing  contestee  every  facility  for  investigating  the 
truthfulness  of  contestant's  witnesses. 

On  cross-examination  the  same  delay  was  indulged  in  and  effort  to 
consume  time  in  this  as  in  the  third  ward. 

It  appears  by  the  record  (p.  191)  that  the  contestant  gave  notice  that 
on  the  31st  day  of  January,  1889,  he  would  commence  to  take  the 
depositions  of  one  hundred  and  forty-nine  witnesses  in  addition  to  the 
283  above  referred  to  as  having  been  called  and  having  sworn  that  they 
voted  for  him,  whose  names  were  given,  mostly  negroes,  who  were 
expected  to  testify  that  they  were  qualified  voters,  and  that  they  cast 
their  ballots  for  John  M.  Langston.  The  first  of  these  witnesses, 
called  and  sworn  January  31,  at  12  o'clock  m.,  was  F.  N.  Robinson 
(p.  192).  His  direct  examination  was  completed  by  eight  questions. 
The  cross-examination  began  the  same  day,  January  31  (p.  197),  and 
was  prolonged  until  late  in  the  day  of  the  5th  of  February — six  days — 
(p.  223)  by  the  asking  of  316  questions,  nine-tenths  of  which  were  use- 
less, irrelevant,  and  frivolous,  and  intended  without  disguise  or  motive 
only  to  consume  time. 

And  then  occurred  an  outrage  without  a  parallel  in  the  history  of  elec- 
tion cases.  Just  as  the  witness  answered  the  three  hundred  and  six- 
teenth cross  question  (p.  223)  he  was  arrested  and  taken  into  custody 
by  a  deputy  United  States  marshal  by  virtue  of  a  warrant  or  capias, 
falsely,  maliciously,  and  without  probable  cause  sued  out  against  him 
by  two  persons,  attorneys-at-law,  who  had  as  counsel  for  the  contestee 
appeared  and  participated  in  said  cross  examination,  upon  their  com- 
plaint on  oath  that  the  witness  refused  to  testify  in  this  case. 

An  examination  of  the  record  shows  the  absolute  falsity  of  this  charge. 
The  witness  maintained  under  the  most  provoking  and  insulting  cross- 
examination  remarkable  self-possession  and  dignified  courtesy,  and  the 
only  explanation  of  this  outrageous  conduct  on  the  part  of  coiitestee's 
counsel  must  be  that  they  hoped  by  their  perjury  to  intimidate  other 
witnesses  from  taking  the  stand  to  expose  the  frauds  by  which  their 
client  obtained  the  certificate  of  election. 

Having  themselves  stopped  the  cross-examination  by  the  arrest  of 
the  witness  they  impudently  objected  to  the  consideration  of  his  testi- 
mony for  the  reason  that  they  had  not  had  the  opportunity  to  cross- 
examine  him,  and  for  the  further  reason  that  his  deposition  was  not 
signed. 

David  L.  Brewer,  another  witness,  says,  on  this  subject,  page  225 : 

Ist.  Question.  What  is  yonr  name,  age,  and  residence?— Answer.  David  L.  Brewer ; 
twenty-two  years  old ;  62  Lombard  street,  Petersburg,  Virginia. 

2d.  Question.  Were  you  on  the  6th  day  of  November  last,  election  day,  in  the  city 
of  Petersburg ;  and,  if  so,  state  whether  or  not  you  were  at  the  6th  ward  polls  at  any 
time  duiiSig  that  day,  and  if  anything  special  occurred  at  said  polls  state  what  fully, 
and  whether  you  took,  with  others  whose  names  you  may  give,  any  special  part 
therein  so  far  as  the  same  had  to  do  with  the  election  then  and  there  occurring  ? — 
Answer.  I  was  in  the  city  and  at  6th  ward  polls  about  three  hours  V^ore  the  closing 
of  the  polls  and  noticing  the  manner  in  which  the  m-en  were  voted,  aud  I  concluded  to 
stay  until  the  closing  of  the  polls.  There  were  one  hundred  and  twenty-four  men  in 
line  at  the  closing  of  the  polls  which  could  have  voted  if  they  only  had  a  chance. 
Seeing  how  they  were  defrauded  out  of  their  votes,  I  walked  down  the  line  and 
noticed  and  also  read  every  man's  ballot  as  he  had  it  opened,  holding  it  up.  I  noticed 
one  hiuidred  and  twenty-one  ballots  that  one  hundred  and  twenty-one  men  held  was 
for  John  M.  Langstfln  for  a  member  of  Congress,  and  three  ballots  which  three  men 
had  was  for  R.  W.  Arnold  for  member  of  Congress.  Seeing  how  these  men  were 
defrauded  I,  in  company  with  F.  N.  Robinson  and  A.  J.  Smith,  invited  these  men 
Across  the  street  so  as  we  could  take  their  names  and  ballots;  and  if  they  could  sign 


462  LANGSTON   VS.   VENABLE. 

their  b.tllot8  they  did  so,  and  those  that  could  not  write  A.  J.  Smith  and  myself 
Bigoed  their  ballots  with  their  mark  attached  and  then  witnesseth  it.  I  also  noticed 
that  they  had  two  lines,  one  for  the  Democrats  and  one  for  the  Republicans,  and  I 
also  noticed  that  they  would  vote  three  Democrats  to  one  Eepublican.  After  the 
line  had  swung  across  the  street  we  proceeded  to  take  the  names  and  ballots.  After 
taking  the  names  and  ballots  th  e  ballots  were  strung  by  me,  counted  by  F.  N.  Rob- 
inson, A.  J.  Smith,  and  myself  ;  then  we  proceeded  and  made  a  parcel  of  them  and 
sealed  tht-ni  with  F.  N.  Robinson,  D.  L.  Brewer,  and  L.  M.  Glenn  in  the  room,  in  the 
I»refience  of  William  Wesley  Brown  and  Drewry  Batts. 

3d.  Question.  How  were  the  names  taken  and  how  kept  by  you,  in  list  or  book,  or 
how  ?— Answer.  The  names  Avere  taken  and  kept  by  F.  N.  Robinson  in  a  bo  k,  whilst 
Smith  and  I  signed  and  witnesseth  the  ballots  of  men  who  could  not  write.  Robin- 
son took  the  name  of  each  man  as  we  called  it  out. 

4th.  Question.  State  whether  or  not  you  saw,  examined,  and  know  the  book  kept, 
as  stated  by  you  ? — Answer.  I  saw  and  know  the  book. 

r>th.  Question.  Please  state  whether  or  not  the  book  which  is  now  handed  to  you 
and  the  package  to  which  you  have  referred  and  described  are  the  identical  ones  ar- 
ranged and  kept  as  described  by  you  as  having  been  arranged  and  kept  on  the  6th 
day  of  last  November,  [The  package  and  book  were  handed  to  the  witness.] — An- 
swer. They  are. 

(The  contestant  now  asks  that  the  book  and  package  be  now  filed  and  made  a  part 
of  tiic  testimony  of  tho  witness.) 

6tIi.  Question.  State,  if  you  please,  whether  or  not  there  were  differences  made  in 
the  mode  or  manner  of  approach,  partition  or  otherwise,  between  voters  seeking  to 
cast  their  ballots  at  the  (5th  ward  in  the  city  of  Potersburghon  the6th  day  of  Novem- 
ber, 1838?— Answer.  There  was  a  partition  which  divided  the  Republicans  from  the 
Democrats. 

A.  J.  Smith  testified,  page  228,  et  seq.: 

My  name  is  A.  J.  Smith ;  I  am  tweuty-jeven  years  old ;  I  live  at  526  Pegram  street. 
I  was  in  Petersburg  the  6th  of  November  last.  I  was  at  the  6th  Ward  polls  about 
two  hours  during  the  morning,  and  again  from  soon  after  3  o'clock  p.  m.  till  after  the 
polls  had  closed.  During  the  progress  of  the  election  I  noticed  some  things  that  I 
regarded  as  peculiar,  one  of  which  was  that  while  all  the  colored  voters  were  re- 
quired to  approach  the  polling  place  on  one  side  of  a  plank  and  the  white  voters  on 
another,  certain  colored  voters  were  conducted  to  the  window  where  the  voting  was 
going  on,  on  the  same  side  with  the  white  voters,  and  allowed  to  vote.  At  each  time 
during  the  day  that  I  was  there,  there  was  on  the  side  of  the  plank  appointed  for 
colored  voters  a  long  row  of  voters  who  complained  of  the  delay  of  the  election.  I 
tried  to  vote  in  the  morning,  but  had  to  leave  before  I  succeeded.  When  I  returned 
in  the  afternoon,  about  3.15  p.  m.,  so  great  was  the  crowd  of  voters  on  the  colored 
side  that  I  despaired  of  being  able  to  vote.  Finally,  I  voted  by  chance ;  the  long  line 
of  voters  had  moved  away  from  the  plank  and  the  short  line  had  formed  between 
them  and  the  plank.  I  thought  it  a  chance  to  get  in  my  vote,  and  moved  from  the 
long  line  and  took  a  place  in  the  short  line.  The  judges  ordered  the  police  to  arrange 
the  line;  they  decided  to  allow  the  persons  in  the  short  line  to  vote,  and  so  I  voted. 
If  it  had  not  been  for  this  I  would  have  been  among  the  large  number  of  persons  who 
were  in  line  waiting  to  deposit  their  votes  when  the  polls  closed.  After  I  had  voted 
I  moved  around  about  the  polls,  and  seeing  snch  a  large  number  of  persons  who  were 
prevente«l  by  the  delay  of  the  officers  of  the  election  from  getting  in  their  ballots, 
and  seeing  that  most  of  these  people  were  going  to  vote  for  the  candidate  for  whose 
election  I  was  most  anxious,  and  knowing  that  most  of  them  had  been  a  long  time  in 
the  attempt  to  vote,  I  thought  that  there  might  be  a  remedy  for  what  I  considered  a 
willful  suspension  of  their  votes.  I  consulted  with  other  persons  who  felt  as  I  did, 
and  we  decided  to  take  a  list  of  persous  remaining  in  line  and  their  ballots.  When 
the  polls  closed  the  persons  in  line  were  asked  to  remain  in  line  and  to  file  past  Dr. 
Stillwell's  office,  where  arrangements  had  been  made  to  receive  their  names  and 
ballots.  Mr.  F.  N.  Robinsou  and  Mr.  David  L.  Brewer  were  in  the  office,  sitting  at  a 
table  by  the  window.  Finding  that  they  were  not  taking  their  names  and  ballots  as 
fast  as  tho  people  desired,  I  offered  to  assist  them  and  did  assist  them.  I  stood  by  the 
window  .and  took  tho  ballots,  writing  the  names  and  residences  of  the  persons,  giving 
them  on  the  back  of  the  ballots.  When  I  commenced  this  I  asked  Freeman  .Tones,  a 
voter  of  6th  ward,  to  stand  at  my  side  and  see  that  the  ballots  so  indorsed  by  me 
were  the  same  ballots  given  me.  When  I  had  finished,  and  that  was  when  no  more 
ballots  were  offered,  I  handed  them  to  Robinson  through  the  window,  and  the  names 
on  the  backs  were  copied  on  the  list  and  the  ballots  strung  with  other  ballots  that 
they  had  taken.  I  had  occasion  to  leave  the  window  for  a  few  moments,  and  when  I 
returned  tlu'v  were  preparing  to  seal  them  up  in  a  package.  I  agreed  that  this  was 
the  proper  thing  to  do,  but  I  did  not  assist  in  doing  this.  I  left  aud  went  down  town. 
All  this  occurred  wiHiin  a  short  time  alter  the  closing  of  the  polls,  and  was  finished 
a  long  tinio  betbre  the  judges  made  the  return  of  the  election. 


LANGSTON    VS.    VENABLE.  463 

Cross-examination : 

lltb.  Question.  In  answer  to  a  previous  question  you  stated  that  a  plank  separated 
the  white  and  colored  voters  at  6th  ward  election  day,  Nov.  6th,  1888.  Was  not  that 
))lank  supposed  to  separate  the  Democrats  and  Republicans? — Answer.  It  was  not 
supposed  to  separate  the  Democrats  and  Republicans.  I  mentioned  it  in  order  to 
point  out  a  novel  feature  of  the  election.  This  plank  has  been  used  to  separate  the 
colored  voters  from  the  white.  I  can  not  remember  ever  seeing  a  white  voter  vote 
from  the  side  of  the  plank  appointed  for  the  colored  voters;  but  on  this  occasion 
some  few  colored  voters  were  taken  to  the  window  on  the  side  of  the  plank  appointed 
for  the  white  voters,  and  did  vote  from  there.  The  selection  of  these  few  from  among 
the  large  number  of  colored  voters  who  were  in  line  attempting  to  vote  seemed 
peculiar. 

12th.  Question.  Is  it  not  a  fact  that  persons  who  voted  on  one  side  of  the  plank 
were  regarded  as,  and  thought  by  the  party  managers  on  both  sides  to  vote  the  Re- 
publican ticket,  and  those  who  vote  on  the  other  side  of  the  plank  as  voting  the  Demo- 
cratic ticket  ? — Answer.  I  can't  see  how  it  could  be  so  regarded.  There  are  white 
voters  in  6th  ward  who  are  classed  as  Republicans.  They  all  voted  on  the  same  side 
as  other  white  voters.  This  prevents  any  one  familiar  with  6th  ward  election  from 
making  the  distinction  you  suggest. 

ir)th.  Question.  How  many  do  you  suppose  loft  the  jiolls  without  voting  ? — Answer. 
I  can  not  say  with  certainty.  I  know  of  several  who  have  reported  that  they  did 
not  vote,  because  they  left  the  polls  after  having  spent  an  unusually  long  time  in 
trying  to  vote. 

(The  latter  statement  made  by  the  witness  was  objected  to  by  counsel  for  contestee 
on  the  ground  that  it  is  hearsay.) 

16th.  Question.  Do  you  of  your  own  personal  knowledge  know  of  any  who  left  be- 
fore the  polls  closed  without  voting  t — Answer.  I  know  of  several  who  have  said  that 
they  did.  Unless  I  had  watched  a  person  closely  and  continuously  I  would  be  un- 
able to  testify  of  my  own  personal  knowledge  whether  he  had  voted. 

17th.  Question.  Please  give  the  names  of  those  who  told  you  that  they  left  before 
voting. — Answer.  I  do  remember  the  names  of  two  persons,  others  I  did  not  know  or 
have  forgotten.  The  persons  referred  to  as  remembered  by  me  are  W.  S.  Fields  and 
Wm.  H.  Reaves. 

18th.  Question.  Please  say  how  many  you  think  must  have  left  without  voting. — 
Answer.  The  cases  of  which  I  learned  will  amount  probably  to  twelve. 

19th.  Question.  Is  it  your  judgment  that  those  twelve  were  all  who  left  before  the 
polls  closed  without  voting  ? — Answer.  I  can  not  express  an  opinion  as  to  whether 
they  were  all ;  I  have  not  tried  to  ascertain  ;  I  have  learned  of  these  in  general  con- 
versation about  the  election. 

20th.  Question.  Did  you  make  any  attempt  yourself  to  get  into  the  line  formed  by 
the  white  voters? — Answer.  I  did  not. 

21st.  Question.  Did  you  see  any  one  excluded  who  did  make  the  attempt? — Answer. 
I  did  not  see  any  one  excluded.  It  was  the  understanding  with  the  police  that  only 
such  colored  persons  as  were  conducted  by  this  way  to  the  window  should  be  allowed 
to  approach. 

22cl.  Question.  Please  explain  what  you  mean  by  the  words  "only  such  colored 
persons  as  were  conducted  that  way  should  be  allowed  to  approach." — Answer.  I 
mean  that  all  other  colored  persons  were  restricted  to  the  side  of  the  plank  generally 
used  for  colored  persons. 

23d.  Question.  Did  you  not  say  that  some  colored  persons  voted  on  the  side  of  the 
plauk  generally  used  for  white  persons? — Answer.  I  did. 

24th.  Question.  Then  might  not  the  fact  that  one  side  of  the  plank  was  generally 
used  for  colored  persons  have  been  in  consequence  of  the  preference  of  the  colored 
persons  themselves  of  that  side  of  the  plank? — Answer.  I  think  not.  I  suppose  that 
they  would  not  prefer  to  remain  away  from  the  window  where  the  votes  were  re- 
ceived rather  than  approach  nearer  on  the  other  side. 

25th.  Question.  You  have  testified  substantially  that  you  did  not  yourself  attempt 
to  approach  the  window  from  the  other  side  of  the  plank ;  that  you  did  not  see  any 
one  who  attempted  to  do  so  denied  a  place  in  the  line  on  the  other  side,  and  in  fact 
that  several  colored  men  actually  entered  the  lino  and  voted.  Then,  where  was  the 
"sinister  design"  that  you  have  testified  to  as  being  manifest ?— Answer.  I  did  not 
attempt  to  approach  the  ballot-box  on  the  side  mentioned,  but  I  spoke  to  the  police 
authorities  about  this  condition  of  things.  I  was  led  to  believe  that  it  would  be  use- 
less to  attempt  it.  The  general  impression  was  that  the  few  colored  persons  voting 
Irom  the  white  line  had  been  induced  to  vote  a  ticket  more  acceptable  to  the  mana- 
gers of  the  election  than  the  tickets  which  the  majority  of  the  voters  on  the  other 
side  of  the  plank  were  about  to  ofter,  and  which  most  of  them  displayed  open  in  their 
hands.  I  think  this  favor  extended  to  the  colored  voters  who  voted  on  the  other 
side  was  not  so  much  a  favor  to  them  as  an  attempt  to  get  in  all  of  a  certain  kind 
of  ballots. 


464 


LANGSTON   VS.    VENABLE. 


26th.  Question.  Tlieii,  from  your  last  answer,  it  is  evident  that  if  any  "  sinister  de- 
sign" was  really  manifest  the  exhibition  of  it  is  to  be  attri  butcd  to  the  city  police.  You 
surely  don't  mean  to  say  that  any  of  the  police  authorities  of  the  city  of  Petersburg 
stationed  themselves  at  the  end  of  tlie  line  filled  by  white  men  and  allowed  only  those 
colered  men  to  enter  it  who  had,  as  you  say,  been  induced  to  vote  the  ticket  whicli 
was  more  acceptable  to  the  managers  of  the  election  than  the  ticket  which  the  ma- 
jority of  the  voters  on  the  other  side  of  the  plauk  were  about  to  offer  ? — Answer.  The 
police  appeared  to  bo  acting  under  the  direction  of  the  judges  of  election  in  all  their 
acts  relative  to  the  arranging  of  the  lines  of  voters.  For  example  ;  When  I  had  secured 
a  place  in  the  short  line  to  which  I  have  referred  previously  I  noticed  the  judges  of 
election  ordered  the  police  to  arrange  one  line  on  that  side  of  the  plank.  They  stated 
that  Ihey  were  unable  to  decide  which  was  the  proper  line,  and  suggested  that  those 
in  the  short  line  be  allowed  to  vote.  I  noticed  this  particularly,  as  I  was  in  the  short 
line  and  interested  in  the  decision  of  the  judges.  The  judges  decided  as  the  police 
suggested.  As  regards  the  2d  part  of  the  question,  I  mean  to  say  that  no  colored  man 
was  allowed  by  the  police  to  come  very  near  the  line  referred  to  unless  escorted  by 
certain  persons. 

It  appears  from  the  above  that  by  the  intended  delay  124  voters  were 
prevented  from  casting  their  ballots,  and  that  in  all  human  i^robability 
121  of  them  would  have  voted  for  contestant,  and  3  for  Mr.  Arnold.  The 
committee  has  not  counted  these  votes  for  contestant,  distinguishing 
between  this  case  and  the  case  of  Waddill  vs.  Wise,  decided  at  this  ses- 
sion of  Congress,  where  a  somewhat  similar  state  of  affairs  was  presented 
in  certain  wards  of  the  city  of  Richmond.  But  in  Waddill  vs.  Wise 
each  voter  counted  for  contestant  by  the  committee  had  been  called  as 
a  witness  by  contestant,  and  had  sworn  to  his  right  to  vote,  and  that 
he  would  have  voted  for  contestant  had  he  been  permitted  to  cast  his 
ballot.    This  supplemental  proof  was  not  furnished  in  this  case. 

The  committee  is,  however,  of  the  opinion  that  if  these  124  votes 
equaled  or  exceeded  the  plurality  returned  for  the  contestee  so  that  the 
legality  of  the  election  depended  upon  them,  it  would  invalidate  his 
election  with  no  further  proof  and  make  a  new  election  necessary,  and 
to  that  extent  the  committee  agrees  with  the  reasoning  of  the  report 
of  the  minority  in  Waddill  vs.  Wise. 

Taking  this  view  of  the  case  the  124  voters  prevented  from  casting 
their  ballots  must  be  considered  for  the  purpose  of  unseating  the  con- 
testee only,  but  can  not  be  cons  dered  in  favor  of  contestant's  right  to 
his  seat.  The  contestee's  lack  of  a  plurality  would  then  be  the  plurality 
found  for  contestant,  viz,  731  plus  124  equals  855. 

Restating  the  vote  showing  the  election  of  Langston  we  have : 


Tenable. 


Langston. 


Returned  vote 

Add  Poach  and  Boss  . 


13,298 


Deduct  Lewiston  as  returned 

Deduct  Mannborough  as  returned 

Deduct  Third  Ward,  Petersburg,  as  returned  . 

Add  votes  proved , 

Deduct  Sixth  Ward,  Petersburg,  as  returned . 


13, 367 
119 


13,248 
122 


13, 126 
518 


12,608 


12,608 
352 


Add  votes  proved 

Making  total  legal  vote 


12,256 


12,256 


Showing  legal  plurality  for  Laugston  . 


12, 657 
141 


12, 798 
48 


12.750 
111 


12,  639 
174 


12,405 
284 


12.  749 
130 


12, 610 
377 


12, 987 
12,256 


731 


LANGSTON   VS.    VENABLE. 


465 


Or,  to  state  the  account  differently,  for  the  sake  of  illustration,  we  will 
give  Mr.  Venable  all  the  votes  not  accounted  for  in  the  Third  Ward, 
and  we  have — 

Total  vote  Third  Ward  as  returned 797 

Vote  proved  for  Laugston 284 

Vote  for  Arnold,  returned 105 

389 
Leaves  balance  of  vote  for  Venable 408 

Total  as  returned 797 

And  in  Sixth  Ward,  total  vote  returned  ...,. 651 

Vote  proved  for  Laugston , 377 

Vote  for  Arnold,  returned 160 

537 
Leaves  balance  of  vote  for  Venable 114 

Total  as  returned 651 

Under  this  plan  the  total  vote  would  stand  as  follows  ; 

[It  is  unnecessary  to  include  the  vote  for  Arnold,  aa  it  does  not  affect  the  result.] 


Venable. 


Laugston. 


Total  vote  corrected  down  to  Petershargh 

Deduct  returned  vote  Third  and  Sixth  Wards. 


13, 126 

870 


12,  639 
313 


Add  vote  proved  for  Laugston,  giving  to  Venable  vote  not  accounted  for 
Making  the  result 


12, 256 
522 


12,  326 
661 


12,778 


12, 987 
12,  778 


Or  a  plurality  for  Laugston  of . 


209 


Throwing  out  the  third  and  sixth  wards  and  not  counting  vote  proved 
in  those  wards  gives  Langston  a  plurality  of  70.  Or  take  the  total  vote 
as  returned  from  the  district  with  the  addition  of  Poarch  and  Ross  pre- 
cinct, which  is  admitted,  and  re-adjust  it  as  proven  in  Third  and  Sixth 
wards  of  Petersburgh,  leaving  rest  of  district  untouched,  and  we  have 
the  following  result : 


Venable. 


Langston. 


Vote  aa  returned  in  district  including  Poarch  and  Koss. 
Deduct  returned  vote  Third  and  Sixth  wards 


Add  vote  proved  for  Langston  in  Third  and  Sixth  wards  and  giving  Venable 
vote  not  arCCount>)d  for 


This  gives  Langston  a  plurality  of . 


13, 367 
870 


12, 497 
522 


13,019 


12,  798 
313 


12.485 
661 


13, 146 
13, 019 


The  committee  adheres  to  the  first  of  the  above  statements  as  being 
the  legal  method  of  ascertaining  the  true  vote,  and  uses  the  latter  illus- 
trations simply  for  the  purpose  of  demonstrating  that  in  any  view  of 
the  case  the  contestant  is  elected  and  entitled  to  his  seat.  It  is  evident 
that  giving  to  contestee  the  vote  not  accounted  for  would  be  a  direct 
encouragement  to  election  frauds,  as  it  would  give  him  the  benefit  of 
H.  Mis.  137 30 


406  LANGSTON   VS.    VENABLE. 

every  fraudulent  vote  which  his  friends  had  made  it,  iiniwssible  for  the 
opposition  to  expose,  even  after  the  proof  clearly  established  fraud  to 
such  an  extent  as  to  destroy  absolutely  the  integrity  of  the  of&cial  re- 
turns.    In  no  case  has  such  a  rule  been  adopted. 

Sufficient  is  shown  to  show  the  election  of  contestant,  and  the  com- 
mittee does  not  by  its  silence  indorse  the  fairness  of  the  election  in 
many  precincts  not  discussed  in  this  report,  but  challenged  in  con- 
testant's notice  and  briefs,  and  as  to  which  there  was  evidence  of  illegal 
practices.  I^either  do  we  ai)i)rove  of  the  dilatory  tactics  pursued 
by  contestee's  counsel  in  other  than  the  Third  and  Sixth  wards, 
Petersburgh,  whereby  contestant  was  prevented  from  pursuing  his  ex- 
amination of  many  witnesses  in  such  wards. 

At  Meherrin,  Lunenburgh  County,  one  of  the  judges  duly  appointed 
and  friendly  to  contestant  was  illegally  denied  the  right  to  serve  and 
another  substituted  in  his  place  unfriendly  to  contestant.  There  is 
evidence  tending  to  show  that  40  votes  were  cast  for  contestant  and 
only  20  returned  for  him.  But  the  latter  fact  is  disputed,  and  the  re- 
turns are  permitted  to  stand. 

At  Brown's  Store  there  was  an  unwarranted  and  unexjjlained  change 
of  two  judges  on  October  30,  only  a  few  days  before  election,  and  con- 
siderable evidence  of  misconduct  and  attempts  at  bribery  by  persons 
outside  of  the  polls.  It  is  not  clearly  shown  that  the  results  were 
affected,  and  the  returns  are  not  disturbed. 

At  Columbian  Grove  only  one  of  the  legally-appointed  judges  served, 
the  electoral  board  appointing  two  new  judges  without  notice  and  with- 
out apparent  cause  or  legal  authority  on  October  28,  immediately  be- 
fore the  election.  One  of  the  legally -appointed  judges  offered  to  serve 
on  the  morning  of  election  but  was  refused. 

At  Hicksford,  Greensville  County,  there  is  considerable  evidence  tend- 
ing to  show  that  all  the  votes  cast  for  contestant  were  not  counted  for 
him.  No  friend  of  contestant  was  permitted  to  witness  the  count.  All 
the  judges  and  clerks  of  election  were  oi)posed  to  contestant. 

In  no  case  did  a  substitution  of  judges  result  in  placing  a  friend  of 
contestant  upon  the  local  returning  board,  while  in  many  instances  his 
friends  were  removed  and  his  political  opponents  substituted  for  them. 

The  committee  desires  to  express  its  condemnation  of  the  practice  of 
re-adjusting  legally-constituted  election  boards  during  a  heated  political 
contest  without  cause  and  without  warrant  of  law,  and  for  the  evident 
purpose  of  placing  one  political  party  or  candidate  entirely  in  the  hands 
of  its  or  his  political  opponents.  There  can  be  but  one  purpose  in  such 
a  change,  and  that  a  jjurpose  to  which  criminally-inclined  minds  only 
will  resort. 

Judge  Howell  E.  Jackson,  late  a  United  States  Senator  and  now  a 
judge  of  eminence,  in  his  charge  to  the  jury  in  the  recent  trial  of  Ten- 
nessee election  officers  for  violating  the  Federal  election  laws  at  Mem- 
phis, Tenu.,  used  the  following  language: 

Said  witnesses  testified  that  the  voting  population  of  the  fourth  civil  district  of 
Fayette  County  on  November  6,  1888,  numbered  between  490  and  500 — say  about  aOO. 
That  about  80  to  100  of  such  voters  were  white  men  or  Democrats;  the  remainder, 
numbering  about  400,  were  colored  men  and  Republicans.  That  on  the  day  of  the 
election  tiiere  was  a  large  turn  out  of  such  voters.  That  the  colored  voters  present 
exceeded  ^300  in  number.  John  McGowan,  the  Republican  chairman  of  the  district, 
states  that  there  were  over  :i00  colored  Republican  voters  present.  That  he  directed 
many  or  most  of  them  to  go  for  their  tickets  to  John  C.  Reeves,  who  occupied  a  posi- 
tion 10  or  20  stops  from  the  voting  place,  and  was  distributing  Republican  tickets  to 
Republican  voters.  That  Reeves'  position  was  in  full  view  of  the  window  at  which 
the  ballots  were  handed  in  to  the  officer.  That  he  saw  many  of  the  tickets  de- 
posited or  handed  in  to  the  officer  holding  the  election,  and  can  not  swear  to  the 


LANGSTON   VS.    VENABLE.  467 

actual  unmber  that  voted  that  had  Eepublican  tickets.  John  C.  Reeves  testified 
before  you  that  he  was  present.  That  he  had  in  his  possession  Eepublican  tickets,  a 
sample  of  which  is  produced  in  evidence,  having  on  it  a  full  list  of  Republican  candi- 
dates, from  Presidential  electors  and  Congressmen  down  to  State  and  county  officers. 
That  he  issued  to  the  colored  voters  on  that  day,  upon  their  application  for  the  same, 
325  of  those  tickets  while  at  the  voting  place.  That  on  his  way  home  he  met  four  or 
five  other  voters  going  to  the  i^olls,  lo  whom  he  gave  Eepilblican  tickets;  the  names 
of  two  of  those  voters  he  finds  ui>on  the  poU-listat  Nos.  407  and  409.  Reeves  further 
states  that  he  saw  over  one  hundred  of  tha^Bfc|.>yhom  he  gave  tickets  go  directly 
from  him  to  the  window  where  the  votes  v^^^lceived  and  hand  them  in  to  the 
officer  holding  the  election.  He  could  not  swear  that  they  actually  deposited  the 
identical  tickets  received  from  him,  but  he  saw  no  change  of  ticket  or  change  of 
purpose  on  the  part  of  the  voter  after  procuring  from  himself  the  Republican  ticket. 
He  recognizes  on  the  poll-list  the  names  of  about  one  hundred  of  such  Republican 
voters.  Now,  gentlemen  of  the  jury,  Reeves  and  McGowan  are  in  no  way  impeached, 
nor  are  their  statements  in  any  wise  contradicted.  They  stand  before  you  as  in  every 
way  credible  witnesses,  and  their  testimony  is  entitled  to  full  faith  and  credit.  If 
the  case  for  the  prosecution  stopped  with  Reeves  and  McGowan,  it  would  present  a 
case  of  circnroetantial  evidence  as  to  the  vote  actually  cast  having  exceeded  that 
which  was  counted  and  returned  by  the  election  officers  and  judges.  When  circum- 
stantial evidence  is  relied  on  to  convict,  as  counsel  for  defense  has  suggested,  it 
should  be  of  such  conclusive  character  as  to  exclude  any  remote  hypothesis  of  inno- 
cence. 

It  is  to  be  remembered  that  the  last  remark  has  reference  to  the 
proof  required  to  convict  in  a  criminal  case. 

Speaking  in  regard  to  individual  voters  who  had  testified  to  their 
votes,  he  said : 

If  the  prosecution  had  simply  shown  that  each  one  of  these  witnesses  was  seen 
going  to  the  poll  with  a  Republican  ticket  in  his  hand  which  he  had  received  from 
Reeves,  with  a  declaration  of  his  intentioq  to  vote  said  tickets,  such  facts  and  acts 
would  have  constituted  circumstantial  evidence  that  they  voted  said  ticket. 

It  is  to  be  remembered  that  the  evidence  in  this  case  is  more  direct 
and  more  certain  than  was  the  evidence  upon  which  Judge  Jackson's 
charge  was  based,  and  that  the  witnesses  and  voters  take  much  greater 
pains  to  be  able  to  know  the  exact  facts. 

Remembering  who  Judge  Jackson  is  and  what  his  party  aflBliations 
are,  and  that  the  men  on  trial  were  citizens  of  his  own  iState  and  mem- 
bers of  the  political  party  to  which  he  belongs,  this  charge  will  cer- 
tainly be  accepted  as  of  the  very  highest  authority. 

We  therefore  recommend  the  passage  of  the  following  resolution : 

Resolved,  That  E.  C.  Venable  was  not  elected  a  Representative  of  the 
Fifty-first  Congress  from  the  Fourth  Congressional  district  of  Virginia, 
and  is  not  entitled  to  a  seat  therein. 

Resolved,  That  John  M.  Langston  was  elected  a  Representative  of 
Congress  from  the  Fourth  Congressional  district  of  Virginia,  and  is  en- 
titled to  a  seat  therein. 


VIEWS  OF  THE  MINORITY. 

(1)  Returns.    Irregularities  in. 

The  returns  rejected  by  the  county  commissioners  because  they 
were  not  made  in  accordance  with  the  directory  provisions  of  the  Vir- 
ginia statutes  should  be  counted  by  the  committee,  there  being  no  sus- 
picion of  fraud  or  evidence  tending  to  impeach  their  correctness. 

(2)  Notice  of  contest.    Parties  should  be  bound  by. 

If  any  question  had  been  raised  in  the  notice  of  contest  in  regard  to 
the  precinct  from  which  the  returns  were  not  signed,  and  no  evidence 
taken  to  show  their  correctness,  the  committee  would  be  right  in  re- 
jecting them,  but  their  being  no  mention  of  this  precinct  in  the  notice 
of  contest,  the  contestee  should  not  be  required  to  produce  any  evi- 
dence in  regard  to  it. 

(3)  Return.     When  rejected  what  votes  be  counted. 

If  a  return  is  to  be  rejected,  and  votes  counted  for  contestant,  the 
contestee  should  at  least  be  given  his  well-defined  party  vote,  which 
was  cast  for  him. 

(4)  Evidence.     Testimony  actually  talcen  only  to  be  considered,  not  what 
might  have  been  taken. 

"  The  House  of  Representatives  may  in  a  proper  case  grant  additional 
time  to  take  testimony,  but  it  will  never,  until  all  principles  governing 
judicial  procedure  and  the  hearing  and  determination  of  causes  are  set 
aside  and  utterly  disregarded,  strengthen  and  bolster  up  a  weak  and 
feeble  attempt  to  annul  the  solemn  act  of  election  officials  upon  the 
mere  assertion  of  a  party  that  he  could,  if  he  had  been  favored  with 
more  time,  have  proved  his  case." 

(5)  Votes.    Not  cast. 

There  is  nothing  to  indicate  that  the  inability  of  voters  to  cast  their 
votes  in  time  was  due  to  any  act  of  contestee  or  his  partisans.  The 
plan  of  allowing  voters  from  the  white  and  colored  line  to  vote  alter- 
nately was  a  proper  one.  The  votes  not  cast  cannot  be  counted  for  the 
benefit  or  injury  of  any  one. 

(6)  Excessive  votes.  f 

The  mere  fact  that  the  number  of  votes  returned  exceeds  the  num. 
ber  of  names  checked  on  the  voting  list  does  not  in  the  absence  of  fraud 
or  of  a  change  in  the  result  affect  the  validity  of  the  election.  (Paine, 
§599.) 

The  suspicious  circumstances  claimed  in  this  case  are  not  inconsist- 
ent with  the  honesty  of  the  returns. 

469 


VIEWS  OF  THE  MINORITY. 


Mr.  QTeeeall,  from  the  Committee  on  Elections,  submitted  the  fol- 
lowing as  the  views  of  the  minority ; 

We,  the  undersigned,  members  of  the  Committee  on  Elections,  hav- 
ing duly  considered  the  record  and  the  briefs  filed  and  the  oral  argu- 
ments of  counsel  in  the  contested  election  case  of  John  M.  Langston  vs. 
Edward  C.  Yenable,  from  the  Fourth  Congressional  district  of  Virginia, 
submit  the  following  as  our  views : 

The  Fourth  Congressional  district  of  Virginia  is  composed  of  the 
counties  of  Amelia,  Brunswick,  Dinwiddle,  Greensville,  Lunenburgh, 
Mecklenburgh,  Nottoway,  Powhatan,  Prince  Edward,  Prince  George, 
and  Sussex,  and  the  city  of  Petersburgh. 

At  the  election  in  November,  1888,  Edward  C.  Venable  was  the  Demo- 
cratic nominee,  R.  W.  Arnold  the  Eepublican  nominee,  and  John  M. 
Langston  an  independent  Republican  candidate  for  Congress  in  this  Con- 
gressional district. 

The  contest  was  waged  with  great  vigor  by  the  Democrats  in  their 
support  of  their  nominee,  Venable,  and  by  the  Republicans  in  support 
of  their  nominee,  Arnold,  and  the  independent  candidate,  Langston,  re- 
spectively. 

The  nominee  of  the  Democrats  was  a  strong  and  popular  candidate,  a 
resident  of  the  city  of  Petersburgh,  a  large  manufacturer  and  employer 
of  many  hands,  and  he  was  supported  most  enthusiastically  by  his  party. 

Arnold,  the  Republican  nominee,  had  the  earnest  support  of  General 
William  Mahone,  chairman  of  the  Republican  State  Committee,  a  resi- 
dent of  Petersburgh,  and  the  entire  Republican  organization  of  the 
district,  and  substantially  all  the  white,  and  many  of  the  colored  Re- 
publicans. 

Langston  rallied  around  him  the  greater  part  of  the  colored  voters, 
and  being  a  colored  man,  drew  "  the  color  line"  and  demanded  the  sup- 
port of  his  race  over  the  regular  nominee  of  the  Republican  party,  who 
was  a  white  man.  He  canvassed  the  district,  making  everywhere 
speeches  which  were  calculated  and  intended  to  arouse  race  prejudices, 
denounced  the  Republican  nominee  because  he  was  a  white  man,  and 
General  Mahone,  chairman  of  the  Republican  State  Committee,  in  the 
most  violent  terms. 

The  fight  between  the  followers  of  Arnold  and  Langston  became  most 
intensely  bitter.  I 

From  the  prominent  and  leading  colored  leaders  outside  of  the  State, 
as  well  as  within  the  district,  came  severe  criticism  of  Langston's  course. 

Frederick  Douglass,  now  Minister  to  Hayti,  addressed  a  letter  to 
prominent  colored  men  in  the  District,  in  reply  to  a  letter  written  by 
them,  from  which  we  quote  the  following  language  iii  reference  to  Lang- 
ston : 

I  have  nothing  whatever  to  say  against  the  ability  of  the  gentleman  who  is  just  now 
making  a  vigorous  canvass  for  Congressional  honors  in  your  district.     You  know  his 

471 


472  LANGRTON   VS.    VENABLE. 

history.  He  came  among  you  ostensibly  as  an  edncator,  and  not  as  a  politician.  He 
had  acquired  before  he  came  among  yon  considerable  reputation  by  his  ability  as  a 
speaker  and  by  his  connection  with  Howard  University.  He  was  on  the  (inance  com- 
mittee of  the  Freedman's  Bank  when  most  of  its  bad  loans  were  made.  He  wa«  among 
those  who  insisted  that  the  doors  of  the  bank  should  be  kept  open  when  he  knew  that 
thatconcern  was  insolvent.  He  remained  with  Howard  University  so  longas there  was 
a  chance  of  making  himself  its  president.  He  deserted  it  and  denounced  it  when  the 
trustees  of  that  institution  refused  to  gratify  his  ambition.  Coming  among  you  as  an 
educator,  he  sought  the  earliest  opportunity  to  put  himself  in  training  as  a  politician. 
His  high  vocation  as  a  scholar  and  a  teacher  was  abandoned  for  the  pursuit  of  political 
honors.  I  do  not  say  the  political  sins  and  sinuosities  of  John  Mercer  Langstou  are 
worse  than  those  of  many  other  men  who  occupy  seats  in  the  national  Congress,  but  I 
do  say  that  they  have  been  such  as  to  justify  the  colored  citizens  of  the  4th  district  of 
Virginia  to  regard  his  nomination  as  one,  under  the  circumstances,  not  to  be  made. 

His  nomination  of  Hon.  Fitzhugh  Lee  for  the  Vice-Presidency ;  his  coquetting  with 
the  Democratic  party ;  his  leaning  towards  a  division  of  the  colored  vote ;  his  duplic- 
ity in  keeping  the  name  of  James  G.  Blaine  at  the  head  of  his  paper  in  Virginia, 
while  he  frantically  shouted  for  Sherman  at  the  Chicago  convention,  clearly  with  the 
motive  of  making  himself  secure  in  the  good  graces  of  one  or  the  other,  if  successful, 
proves  hiiu  to  be  a  trickster.  And  above  all,  the  insolent  announcement  of  his  deter- 
mination to  force  his  nomination  by  threatening  the  Republican  party  with  division 
by  running  for  Congress,  with  or  without  the  consent  of  that  party,  fairly  places 
him  beyond  the  pale  of  Republican  support. 

No  encouragement  should  be  given  to  any  man  whose  mad  political  ambition 
would  imperil  the  success  of  the  Republican  party  in  any  section  of  the  Republic. 

Yours,  for  the  triumphant  election  of  Benjamin  Harrison  and  Levi  P.  Morton, 

Fkkdekick  Douglass. 

Cedar  Hill,  Anacostla.,  D.  C,  August  15,  1888. 

(Record  22.) 

R.  L.  Singleton,  president  of  the  Virginia  Republican  Association  of 
the  city  of  Washington,  addressed  the  following  letter  to  Perry  Car- 
son, a  well-known  colored  leader: 

Headquarters  Virginia  Republican  Association, 
No.  7.38  Fourth  Street  Northwest, 

Washington,  D.  C,  October  2^th,  1888. 
Col.  Perrt  Carson, 

Member  National  Fepuhlican  Committee,  Washington,  D.  C. : 

Dear  Sir:  As  the  president  of  the  Virginia  Republican  Association,  numbering 200 
members,  through  whose  eftbrts  nearly  1000  colored  voters  will  soon  be  sent  to  the  polls 
in  Virginia,  I  have  a  right  to  a  hearing  at  your  hands  regarding  the  Petersburgh  Con- 
gressional embroglio  in  our  State,  where  Candidate  John  M.  Langston,  lately  of  this 
district,  well  known  to  you  personally  and  politically,  is  said  to  stand  with  broad- 
axe  and  bowie-knife  in  hand  thveatening  with  direct  social  and  personal  injury  all 
voters  of  your  race  and  mine  who  are  not  of  his  following  in  the  disastrous  Congres- 
sional battle  which  he  has  brought  upon  the  party  in  that  stronghold  of  Republican- 
ism. Like  myself,  you,  sir,  are  a  black  man  and  proud  of  the. negro  race.  For  eight 
years  or  more  yon  have  faced,  and  fiicing  have  overcome,  all  opposition  to  your  lead- 
ership of  the  negro  masses  at  the  national  capital.  It  will  not  be  forgotten  that  you 
and  that  noble  Irish  patriot  and  Republican  Andrew  Oleason  carried  the  banner  of 
the  "  white  plumed  knight"  to  victory  in  this  city  four  years  ago,  and  also  that  right 
nobly  did  you  and  your  compatriot  repeat  that  victory  in  June  last,  when  the  Chicago 
convention  saw  you  both,  a  second  time,  the  trusted  delegates  of  our  party  in  that 
great  national  conclave  of  Republican  representative  men. 

And  when  that  most  illustrious  of  Americans  James  G.  Blaine,  soon  after  the  Chicago 
nomiuatitm,  returned  from  his  journey  abroad,  borne,  as  it  were,  in  a  million  of  Repub- 
lican arms,  it  will  not  be  forgotten  that  one  of  his  first  and  most  earnest  inquiries,  on 
nearing  his  native  shores,  was  the  one  when  he  said  to  his  bosom  friend,  Stephen  B. 
Elkins:  "Elkins,  I  see  Gleason  abroad;  where  is  Carson?" 

Now,  sir,  as  a  Virginia  Republican,  and  like  yourself  a  Southern  born  and  raised 
black  man,  I  want  to  know  by  what  right  of  superiority,  in  any  respect  whatsoever, 
John  M.  Langston,  who  has  always  boasted  of  his  white,  not  of  his  negro,  blood, 
should  have  so  suddenly  become  the  Colossus  and  dictator  of  your  race  and  mine  in 
Virginia,  stirring  up  strife  amongst  a  large  class  of  its  Republican  voters  by  appeals 
to  their  superstitions  and  ignorance,  and  riding  rough-shod  over  our  old  and  trusted 
leaders  there,  colored  as  well  as  white  men.    Why,  I  inquire,  should  the  negro  voters 


LANGSTON   VS.    VENABLE.  473 

of  the  District  be  asked  to  walk  beneath  Langston's  legs  and  meekly  march,  like  so 
many  sheep,  to  the  slaughter  which,  without  a  settlement  of  the  trouble  into  which 
he  has  plunged  the  party  there,  awaits  us  on  election  day  ? 

In  a  briet  talk  with  Langston  a  day  or  two  ago  in  this  city  he  contemptuously 
waved  me  away  from  him,  saying  I  was  a  Mahone  man  and  too  much  for  white  men, 
or  words  to  that  effect.  My  simple  reply  was,  that  when  the  colored  man  needed 
friends  in  Virginia  he,  Langston,  was  not  on  hand;  that  when  a  brave  commander 
was  wanted  to  lead  our  hosts  Langston  was  never  to  be  found  on  a  single  one  of  our 
many  and  memorable  battle-fields.  Our  captaiu  and  leader  was  General  William 
Mahone,  and  a  right  noble  one  he  was  and  is. 

And  now  saluting  you,  Col.  Carson,  in  the  words  of  Napoleon  to  his  great  field  mar- 
shal, Ney,  as  the  bravest  of  the  brave,  I  want  you  to  kindly  inform  me,  and  through 
me  the  Republicans  of  my  State,  something  of  the  political  character  and  record  of 
the  most  overbearing  and  audacious  man  whom  I  have  had  the  fortune  to  know  since 
my  connection  with  State  and  national  politics. 
Yours,  sincerely, 

R.  L.  Singleton, 
Pretident  of  the  Virginia  Republican  Aasociaiion. 

(Record  25.) 

To  this  letter  Carson  replied  as  follows: 

Washington,  D.  C,  Odoher  30th,  1888. 
R.  L.  Singleton,  Esq., 

President,  eto. 

My  Dear  Sir  :  Your  letter  of  yesterday  touching  the  unfortunate  condition  of  polit- 
ical aliairs  in  your  time-honored  stronghold  of  Republicanism,  the  4th  Congressional 
district  of  Virginia,  is  before  me.  My  reply  shall  be  sincere  and  brief.  I  amopp(  sed 
to  the  election  of  Hon.  John  M.  Langston  to  a  seat  in  Congress  from  that  district 
for  the  very  simple  and  proper  reason  that  he  is  not  the  regular  or  lawful  nominee  of 
the  party  for  that  office,  and  being  myself  a  strict  party  man,  I  unhesitatingly  ad- 
vise all  good  Republicans,  without  regard  to  race  or  color,  to  support  the  nomination 
of  Judge  Arnold  for  the  position  in  question.  From  the  moment  Mr.  Langston 
uttered  his  unfortunate  declaration  to  the  effect  that  he  should  press  his  candidacy 
for  Congress,  whether  nominated  or  not  by  the  Republican  convention,  I  have  classed 
him  with  the  bolters,  marplots,  and  other  assistant  Democrats,  of  whom  our  grand  old 
party  has  unhappily  too  many.  These  are  my  primary  reasons,  but  there  are  many 
secondary  ones,  a  few  of  which  I  may  briefly  refer  to. 

Mr.  Langston's  printed  utterance,  made  either  in  a  speech  or  interview  a  year  or 
more  ago,  wherein  he  substantially  announced  his  willingness  to  support  Governor  Fitz- 
hugh  Lee,  of  your  State,  for  the  Vice-Presidency  of  the  United  States,  fixed  his  status 
in  my  mind  as  that  of  a  deserting  Republican  or  a  designing  hypocrite  having  an  axe  to 
grind  with  the  Democratic  officials,  to  the  end  that  tlarift  of  some  sort  might  come  to 
him  from  desertion  of  his  party  on  the  one  hand  or  flattery  and  hypocrisy  toward 
Governor  Lee  on  the  other. 

From  all  I  know  of  his  conduct  whilst  an  official  in  this  city  and  otherwise  I  am 
driven  to  the  conclusion  that  he  is,  to  all  intents  and  purposes,  a  white  man's  man, 
except  when  he  is  doing  what  he  now  is,  viz,  soliciting  colored  votes  for  official  posi- 
tion. In  1882,  while  a  member  of  the  board  of  health  of  this  city,  he  never,  though 
often  requested,  gave  to  a  single  one  of  his  colored  fellow-citizens  the  slightest  official 
recognition. 

I  remember  that  James  L.  Bowen,  a  most  reputable  colored  physician,  begged  the 
place  of  a  ward  doctor  at  his  hands.  Bowen  was  a  graduate  of  medicine  and  had  had 
several  years'  experience  in  the  practice.  Instead  of  helping  that  poor  negro,  he  gave 
the  appointment  to  a  young  white  stripling  of  a  doctor  who  had  not  been  six  mouths 
from  school.  I 

Representing  us  as  anegro,  he  appointed,  with  perhaps  a  single  exception,  white  men 
to  office,  because  he  was  not  at  that  time,  nor  never  was  in  his  taste,  habits,  or  associa- 
tion, a  negro  at  all. 

He  learned  decidedly  and  openly  In  favor  of  the  white  man,  and  no  one  who  knew 
him  well,  either  then  or  now,  will  pretend  that  he  is  in  any  sense  a  reliable  and  fit 
representative  of  the  negro  race  of  this  country. 
Very  truly,  yours. 

Perry  H.  Carson, 
Caraon'a  Hotel,  Penn.  Avenue,  fVaahinglon,  I).  C. 

(Record  26.) 


474  LANGSTON   VS.   VENABLE. 

A  colored  minister  addressed  the  following  letter  to  his  congregation : 

Petersburgh,  Virginia,  October  3l8t,  1888. 

To  the  members  and  congregation  worshiping  at  New  Rope  Baptist  Church  {colored),  Sussex 

County,  Va.: 

Beloved  in  Christ :  Moved  by  a  sense  of  duty  I  owe  to  you  as  yonr  cliosen  pastor,  I 
have  in  the  past  vefraiued  from  all  participation  in  any  political  canvass,  and  my  pur- 
pose to  maintain  a  like  course  of  conduct  in  the  present  was  fixed,  until  matters  had 
taken  such  course  and  reached  such  point  that  longer  to  hold  my  peace  would  be  a 
dereliction  of  duty  to  myself  as  a  man  and  to  you  as  a  pastor. 

The  enunciation  lately  made  by  Mr.  Langston  of  war  against  every  white  in  this 
Congressional  district  who  should  dare  to  cast  his  vote  against  him  for  Congress,  first 
opened  my  eyes  to  the  dangers  to  my  race,  which  was  sure  to  follow,  if  the  threat  of 
Mr.  Langston  was  attempted  to  be  carried  out. 

I  could  not  then  hold  my  peace,  and,  impelled  by  the  love  I  bear  you,  I  now  do  most 
earnestly  warn  you  against  giving  yonr  ai>probation  to  any  such  sentiment  by  aftoi'ding 
the  "  aid  and  comfort"  of  your  vote  to  the  author  of  the  sentiment.  To  vote  Mr. 
Langston  now  would  be  to  endorse  the  sentiment  which  you  must  see,  of  necessity, 
will  bring  upon  you  the  indignant  rebuke  of  every  reputable  white  man  in  the  dis- 
trict, whether  he  be  a  Democrat  or  Eepublican. . 

The  color  line  could  not  be  more  distinctly  drawn.  To  adopt  the  advice  of  Mr. 
Langston  is  to  draw  this  line  more  closely  than  ever  before,  and  I  ask  you,  is  it  not 
reasonable  for  the  white  man  to  turn  upon  you  the  doctrine  which  Mr.  Langston 
would  have  you  apply  to  the  white  man  f 

You  are  sensible  people,  and  you  must  know  that,  if  left  to  yourself,  warring  against 
the  white  man,  you  must  be  the  sufferers.  It  is  our  duty  to  cultivate  the  kindest, 
friendliest  relations  with  the  white  man — not  of  war. 

The  Eepublican  party  has  shown  its  disposition  to  recognize  our  race  wherever,  by 
intellect  or  education,  any  has  shown  himself  to  be  capable.  Can  you  say  that  the 
like  has  been  done  by  the  Democratic  party  ? 

Are  you  forgetful  that  the  Virginia  negroes  enjoy  larger  political  privileges,  greater 
advantages  of  citizenship,  than  are  vouchsafed  to  the  race  in  any  other  state  i  And 
do  you  know  that  you  owe  this  same  to  the  very  men  against  whom  Mr.  Langston 
wonld  have  you  now  declare  war  ?    Do  you  owe  Mr.  Langston  anything  ? 

Have  you  forgotten  that  you  owe  to  the  very  men  whom  Mr.  Langston  now  vilifies 
the  right  to  vote  without  the  payment  of  the  dollar  capitation  tax  ?  Do  you  owe  to  Mr, 
Langston  anything  for  this?  Have  you  forgotten  that  to  the  very  men  upon  whom  he 
would  have  ynu  turn  your  backs  you  are  indebted  for  free  schools,  open  as  well  to  tbe 
colored  child  as  to  the  white  child,  with  colored  teachers  ?  Did  Mr.  Langston  give  you 
any  aid  in  this  behalf?  Do  you  forget  that  you  are  indebted  to  the  very  men  whom 
you  are  advised  to  ostracise  for  relief  from  the  whipping-post?  Do  you  owe  Mr, 
Langston  anything  for  this?  Do  you  forget  that  you  owe  to  these  very  men  whom  Mr, 
Langston  now  traduces  the  right  to  sit  in  the  jury-box?  Is  this  no  privilege  that 
you  should  cherish?  Will  you  abandon  those  who  invested  you  with  this  great  priv- 
ilege to  aid  Mr.  Langston,  to  whom  you  owe  nothing  for  the  right?  Does  it  show 
gratitude  to  the  men  who  have  relieved  such  of  our  race  as  are  lunatics  from  confine- 
ment in  the  common  jails  by  providing  for  their  exclusive  use  an  asylum  which  in  all 
its  parts  is  the  equal  of  the  best  asylum  devoted  to  the  whites  by  following  the 
advice  of  Mr.  Langston  f  Do  you  oweanything  to  Mr.  Langston  for  the  Colored  Luna- 
tic Asylum  ?  Have  you  forgotten  the  magnificent  Colored  Normal  School,  near  Peters- 
burgh, by  which  the  colored  men  and  women  are  fitted  to  teach  onr  colored  children, 
and  will  you  wage  war  against  the  men  who  have  secured  such  a  benefit  to  yon  f  Did 
Mr.  Langston  contribute  anything  to  this  great  blessing  to  the  colored  people  of  Vir- 
ginia. 

He  has  been  the  recipient  of  the  loaves  and  fishes,  and  he  has  contributed  nothing. 
Have  you  lost  all  sense  of  gratitude  for  all  these  things  that  you  should  turn  your  backs 
upon  men  who  have  thus  proved  to  be  your  friends  upon  the  dictation  of  one  who  seeks 
for  his  own  personal  ends  to  rouse  all  the  worst  passions,  which  must  result  to  your 
injury  and  enure  any  good  to  our  race  ? 

My  brethren,  I  beg  of  you  to  pause  and  consider  before  you  shall  determine  to  follow 
the  advice  of  Mr.  Langston,  and  imperil  the  best  interest  of  our  race  by  giving  your  vote  to 
a  jierson  who  has  never  in  any  loise,  nor  at  any  time,  nor  at  any  place,  shown  himself 
friendly  to  the  colored  man  or  to  the  Bepublican party. 

I  shall  vote  for  the  regular  nominee  of  the  Mepublican  party — Judge  Arnold — and  I  trust 
you  will  do  the  same. 

In  bonds  of  Christian  love, 

William  Wallace, 
Pastor  New  Hope  Church,  Sussex  County,  Virginia. 


LANGSTON   VS.    VENABLE.  475 

These  letters  were  published  in  circular  form  by  Langston's  Republi- 
can opponents  and  distributed  in  the  district. 

The  National  Leader,  a  Eepublicau  paper  published  in  Washington, 
on  the  6th  day  of  October,  1888,  contained  the  following  editorial: 

The  admirers  of  Mr.  Langston  are  greatly  injuring  their  chances  of  their  amhitious 
hut  misguided  leader  bg  offering  insult  to  General  Mahone.  It  will  be  time  enough  to  play 
the  "Dead  March  in  Saul"  when  Mahone  is  beaten,  if  he  can  be  beaten,  and  we  are  not  so 
sure  that  he  will  be.  Mr.  Langstou  should  employ  experienced  and  practical  ])oli- 
ticians  to  conduct  Ms  side-sliow  in  the  fourth  Virginia  district.  Their  tactics,  if 
the  Lancet  is  to  be  credited,  are  not  such  to  insure  success  to  their  side.  It  is  not 
good  politics  and  certainly  not  good  sense  to  make  a  personal  enemy  of  an  influential 
and  powerful  politician  like  General  William  Mahone,  who  has  done  more  for  the 
colored  people  of  Virginia  than  any  white  man  in  the  State. 

We  are  not  sure  that  Mr.  Langston  is  as  good  a  friend  of  the  negro  as  Mahone, 
for,  if  we  remember  right,  he  is  the  same  Mr.  Langston  who,  some  years  ago  in  Rich- 
mond, declared  that  if  he  believed  he  had  one  drop  of  negro  blood  in  his  veins  he 
would  lance  the  artery  that  contained  it  and  let  it  out. 

Heretofore  Mr.  Langston  has  been  very  white ;  now  he  is  very  black.  We  can't 
understand  it. 

General  Mahone  was  by  no  means  inactive  while  Langston  was  en- 
gaged in  "  offering  insult"  to  him.  He  issued  an  address  to  the  Repub- 
licans of  the  district,  which  we  here  give: 

To  the  Republican  voters  of  the  Fourth  Congressional  district: 

It  is  my  duty  to  inform  you  that  at  the  regular  Republican  convention  for  this  dis- 
trict, held  at  Farmville  on  the  19th  day  of  September,  Judge  R.  W.  Arnold,  of  Sus- 
sex County,  a  true  and  tried  Republican,  was  nominated  by  acclamation  asyourcan- 
didate  for  Congress.  This  convention  was  composed  of  the  following  legally  elected 
delegates : 

From  Sussex .  S.  T.  Drewry,  J.  B.  Jarratt,  J.  D.  Neblett,  W.  H.  Mason,  Stith  Par- 
ham,  R.  H.  Lewis,  John  Lawhead — solid. 

From  Prince  George  :  Charles  Gee,  James  A.  Young,  J,  R.  Teniplo,  E.  T.  Ellis,  Nel- 
son Hobbs,  James  Diggs — solid. 

From  Greenville :  B.  F.  Jarratt  and  Le  Grand  Jackson — two  out  of  the  six  dele- 
gates elected  by  the  countv. 

From  Dinwiddle:  J.  C.  Dnane;  A.  G.  Butterworlh;  W.  D.  Falconer;  Albert  John- 
son, by  L.  E.  Coleman,  his  alternate  ;  J.  C.  Spain  ;  Robert  Goodwyn,  by  Hon.  A. 
W.  Harris,  his  alternate  ;  George  W.  Matthews — solid. 

From  Nottoway;  W.  H.  Ash;  J.  E.  Leath,  by  Charles  Ro  we,  his  alternate:  Ryland 
Ross  ;  S.  F.  Jackson  ;  E.  H.  Witmer ;  Lewis  White,  by  William  Fitzgerald,  his  alter- 
nate— solid. 

From  Lunenburgh:  T.  C.  Matthews;  G.  W.  McLaughlin;  C.  E.  May,  by  Henry 
Hicks,  his  alternate;  Lee  Davis;  Junius  Bagley — solid. 

From  Mecklenburgh :  Ludd  Ruffln;  Charles  Alexander,  by  Aaron  Beard,  his  alternate; 
W.  H.  Jones;  Sowney  Towner;  W.  H.  Jones,  sheriff;  Samuel  G.  Baskerville;  W.  H. 
Northington,  by  Gerard  Baskerville,  his  alternate — seven  out  of  eleven  elected  by  the 
county. 

From  Powhatan:  W.  H.  Flanagan,  Washington  Jones,  Patrick  Mayo,  Larry  Mosely 
— solid. 

From  Prince  Edward :  Hon.  B.  S.  Hooper,  N.  M.  Griggs,  N.  M.  McGhee,  Rich;ir4 
Woodson,  Cephas  Gray,  Walker  Blanton,  Albert  S.  Hines,  Joseph  S.  Doswell— solitT 

In  all,  52  out  of  85  delegates  elected  to  the  convention,  leaving  only  thirty-three 
delegates  who  went  oif  and  held  a  mass-meeting  and  put  up  Mr.  J.  M.  Langston.  Of 
the  iJ3  delegates  so  refusing  to  enter  the  Republican  convention  there  were  12  from 
the  city  of  Petersburgh,  whose  seats  were  contested. 

In  this  state  of  the  case  you  have  before  you  three  candidates  for  Congress,  tlie 
Hon.  R.  W.  Arnold,  the  regular  nominee  of  the  Republican  party,  Mr.  E.  C-  Venable, 
the  regular  nominee  of  the  Democratic  party,  and  Mr.  John  M.  Langston,  the  candi- 
date put  up  by  a  mass-meeting  composed  of  misled  Republicans.  But  one  of  these 
candidates  can  be  elected,  and  it  is  for  the  thoughtful  Republican  to  determine 
"whether  he  will  aid  the  election  of  the  regular  Democratic  nominee,  Mr.  Venable,  by 
throwing  his  vote  away  on  Mr.  Langston,  or,  like  a  loyal  Republican  to  the  Repub- 
lican party,  resolutely  support  the  nominee  of  his  party,  and  cast  his  ballot  for  Judge 
Arnold. 

A  vote  for  Langston  is  half  a  vote  for  Venable,  and  in  the  interest  of  the  Demo- 
cratic candidate  for  President. 

A  vote  for  Arnold  is  a  whole  vote  for  the  principles  of  the  Republican  party  and 
in  support  of  the  election  of  the  Republican  candidate  for  the  Presidency. 


476  LANGSTON  VS.   VENABLE. 

Let  no  true  Eepnblican  be  drawu  away  from  his  Republican  dnty  in  this  contest 
by  any  preferences  be  may  have  bad  for  the  nomination  of  hie  favorite  y)revlon8  to 
tlie  Farmville  convention,  but  now  that  it  has  met  and  given  us  a  candidate  in  the 
person  of  Judge  K.  W.  Arnold,  it  behooves  all  true  Iiei)uhlicans  to  stand  by  him  aa 
the  duly  delegated  standard-bearer  of  the  Republican  party  of  the  fourth'  district. 

William  M  ah  one, 

Chaiiinan. 

There  were  many  colored  men  engaged  in  the  canvass  for  Arnold, 
bnt  they  were  treated  rudely  and  threatened  with  violence  by  Langston's 
supporters,  who  were  wrought  up  by  hiui  to  a  state  of  frenzy.  Here  is 
what  A.  W.  Harris,  one  of  the  most  intelligent  and  respectable  colored 
men  in  Virginia  and  a  member  of  the  legislature  of  the  State,  says: 

1.  Question.  What  is  your  age,  occupation,  and  residence  ? — Answer.  Iam3619fch 
of  this  coming  A*5gu8t ;  lawyer ;  in  the  county  of  Dinwiddie,  about  two  miles  from 
the  city. 

2nd.  Question.  Please  state  what  office,  if  any,  of  a  public  character  you  are  now 
occupying. — Ans.  A  member  of  the  house  of  delegates  of  Virginia. 

3d.  Question.  Please  state  whether  you  took  part  in  the  campaign  which  preceded 
the  election  of  a  member  of  Congress  from  this  district  on  November  6th,  1888 ;  and  if 
yon  occupied  any  position  in  the  campaign  organization,  please  state  what  it  was. — 
Ans.  I  toolc  part  in  the  campaign,  as  above  suggested,  as  a  canvasser.  I  occupied  no 
other  position  in  the  campaign  organization. 

4th.  Question.  Please  state  to  what  political  party  you  belong,  what  parly  you  sup- 
ported as  a  canvasser  in  the  campaign  above  referred  to,  and  as  the  nominee  of  what 
party  were  you  elected  to  the  house  of  delegates! — Ans.  I  belong  to  the  Republican 
party.  I  supported  the  Republican  party's  nominee  in  the  campaign  above  referred 
to.     My  last  nomination  to  the  house  of  delegates  was  by  the  Republican  party. 

5th.  Question.  Have  you  ever  belonged  to  any  other  political  party? — Ans.  No; 
unless  one  who  belonged  to  the  fusion  between  the  Readjusiers  and  Republicans  from 
'80  to  '83  can  be  said  to  have  belonged  to  other  than  the  Republican  party.  In  that 
fusion,  however,  I  was  a  member  of  the  Republican  wing. 

14th.  Question.  Af^^er  the  nomination  of  Judge  Arnold  by  the  regular  Eepwblicau 
convention  please  state  whether  or  not  Judge  Arnold  made  any  canvass  of  this  dis- 
trict, either  personally  or  by  his  supjiorters. — Ans.  I  know  that  from  October  the  4th 
until  the  close  of  the  canvass  Judge  Arnold  spent  nearly  every  day  in  the  various 
counties  of  the  district,  a  majority  of  the  time  making  two  speeches  a  day.  I  know 
that  he  made  a  pretty  thorough  canvass  through  his  supporters ;  that  is  to  say,  as  I 
now  remember  there  were  fifteen  i>ersons  who  spent  a  good  portion  of  the  time  in  the 
field  as  canvassers.  This  does  not  include  the  number  of  persons  who  did  not  leave 
their  particular  counties. 

15th.  Qaestion.  Please  name  as  many  as  you  can  of  the  gentlemen  who  canvassed 
the  district  for  Judge  Arnold,  and  if  there  were  both  white  and  colored  canvassers 
please  signify  that  fact  as  you  call  the  names. — Ans.  There  was  W.  H.  Ashe,  B.  Bas- 
kerville,jr.,  W.  W.  Evans,  J.  W.  Watson,  H.  C.  Cox,  J.  W.  Adams,  J.  W.  Flippen,  Col- 
lins Johnson,  J.  R.  Jones,  William  Jones,  T.  S.^Hamlin,  C.  H.  Branch,  Peter  G.  Morgan, 
W.  n.  Jordan,  R.  B.  Baptist,  and  A.  W.  Harris.  I  am  not  supposed  to  give  everybody 
in  the  canvass,  but  those  I  remember  just  now.  The  above  list  is  made  tip  entirely 
of  colored  canvassers.  I  have  not  undertaken  to  give  any  white  canvassers  in  the 
above  list,  because  I  had  not  as  much  to  do  with  them  as  with  the  colored  canvassers, 
and  therefore  remember  among  the  white  canvassers  only  such  persons  as  Senator 
Charles  Gee,  Jamieson  of  Mecklenburg,  Jones  of  Mecklenburg,  Boswell  of  Nottoway, 
Jones  of  Brunswick,  Butterworth  of  Dinwiddie,  and  Cardoza  of  Lunenburg. 

16th.  Question.  Please  state,  if  you  know,  whether  any  of  the  colored  canvassers 
mentioned  have  at  any  time  occupied  public  positions  of  honor  and  trust  in  the  com- 
munities in  which  they  reside;  and,  if  so,  state  who  they  are  and  what  position. — 
Ans.  W.  H.  Ashe  is  a  member  of  the  house  of  delegates  from  Nottoway  and  Amelia  ; 
B.  Baskerville,  jr.,  is  a  member  of  the  house  of  delegates  of  Virginia  from  Mecklen- 
burg County;  W.  W.  Evans  is  a  member  of  the  house  of  delegates  of  Va.  from  Pe- 
tersburg. These  three  gentlemen  are  sitting  members  from  their  respective  counties. 
J.  R.  Jones  is  an  ex-senator  from  the  senatorial  district  composed  of  the  counties  of 
Mecklenburg  and  Charlotte  ;  W.  H.  Jordan  is  an  ex-member  of  the  house  of  delegates 
from  the  city  of  Petersburgh  ;  Peter  G.  Morgan  is  an  ex-member  of  the  Virginia  legis- 
lature from  the  Petersburgh  district,  and  is  at  present  a  member  of  the  Petersburgh 
city  council ;  Collins  Johnson  is,  as  I  remember,  an  ex-member  of  the  legislature 
from  Brunswick  County. 

18th.  Qnestion.  Please  state  what  was  the  character  of  the  canvass  made  by  Pro- 
fessor Langston  and  his  supporters  in  furtlierance  of  his  election  as  a  Representative 


LANGSTON    VS.    VENABLE.  477 

in  Congress  from  the  Fourth  Congressional  district  of  Virgiiii.a. — Ans.  The  canvass, 
as  I  saw  it,  was  a  very  bitter  one.  Whenever  it  could  be  done  successfully  the  persons 
who  supported  Judge  Arnold  were  prevented  from  speaking  and  getting  at  the  crowd 
in  any  way  that  Mr.  Langston's  friends  could  prevent  them.  The  controlling  element 
of  that  canvass  seems  to  have  inspii'ed  the  masses  with  the  belief  that  it  was  scarcely 
Jess  than  criminal  to  oppose  the  candidacy  of  Professor  Langston.  I  never  in  all  my 
life  saw  the  lines  drawn  so  tightly  against  a  set  of  people  who  dared  to  difier  with 
another  set ;  and  this  condition  of  affairs  extended  even  to  the  women.  The  race  line 
was  tightly  drawn,  and  it  was  argued  that  we,  the  colored  people,  have  a  majority  in 
this  district,  and  because  we  have  a  majority  we  must  elect  Mr.  Langston  to  Con- 
gress. It  is  the  only  canvass  in  which  I  ever  took  part  that  I  have  seen  men  on  the 
opposite  side  driven  from  the  platform.  It  Avas  a  canvass  in  which  the  doctrine  was 
taught  that  the  colored  men  were  able  to  do  without  white  Eepublicans,  and  in 
which  the  further  doctrine  was  taught  that  the  white  or  colored  Republican  who 
was  not  on  that  side  might  conceive  that  all  hopes  of  future  advancement  or  recog- 
nition in  the  lines  of  the  Republican  party  were  sealed.  My  idea  of  the  canvass  as  con- 
ducted from  Mr.  Langston's  stand-point  was  that  no  one  was  to  have  an  opinion  unless 
that  opinion  wentto  the  furtherance  of  the  aims  and  endsof  their  side.  Social  ostracism 
80  far  as  one  colored  man  can  socially  ostracise  another  was  practiced  throughout  the 
canvass.  It  was  a  canvass  which  I  regard  as  exceedingly  hurtful  to  the  relations  exist- 
i  iig  between  the  two  races  of  this  section  of  Virginia,  because  the  animosities  and  hatreds 
engendered  were  of  such  a  character  as  to  make  the  colored  people  restive  in  their 
l)reseut  condition  and  attempt  to  do  that  by  themselves  which  the  experience  of  the 
race  in  every  Southern  State  since  the  war  has  shown  can  only  be  done  through  the 
anited  effort  of  the  white  and  colored  people  when  they  are  harmoniously  moving 
together  for  the  accoujplishinent  of  an  end.  I  mean  to  be  understood  by  this  answer 
as  saying  that  no  strong  effective  Republican  party  in  the  South  can  be  built 
up  upon  black  votes  alone;  that  they  must  have  the  aid  of  white  men,  and  those 
white  men  must  be  drawn  from  the  ranks  of  the  Democratic  party,  or  rather  from 
that  class  of  white  men  and  their  sons  who  followed  the  fortunes  of  the  ex-Con- 
federacy, by  a  spirit  of  toleration  on  the  jiart  of  the  present  members  of  the  Repub- 
lican party  as  one  finds  it  in  the  South.  Such  toleration  and  consideration  for  the 
prejudices  and  education  which  has  obtained  with  that  class  of  men  was  not  dis- 
coverable in  Mr.  Langston's  canvass,  but  rather  there  was  a  disposition  to  say  to 
those  people,  "  If  you  can't  see  things  as  l  do,  and  take  that  which  I  mete  out  to  you, 
we  don't  care  for  you  to  take  a  position  in  the  Republican  x>arty." 

(Note. — The  attorney  for  the  contestant  objects  to  so  much  of  this  answer  as  is 
hearsay,  mere  oi)inion  as  shown  therein,  and  shall  insist  that  it  be  stricken  from  the 
record  as  wholly  illegal.) 

19th.  Question.  You  have  stated  that  Mr.  Langston's  canvass  was  the  only  one  in 
which  you  have  seen  speakers  of  the  opposite  side  driven  from  the  platform.  Do  you 
mean  that  during  the  canvass  Judge  Arnold's  speakers  were  driven  from  the  plat- 
form by  .Mr.  Langston's  supporters? 

(Note. — The  attorney  for  the  contestant  objects  to  the  question  both  on  the 
ground  that  it  is  leading  and  is  in  its  character  and  effect  not  direct,  but  cross-ex- 
amination.) 

Ans.  I  do.  I  saw  them  driven  from  the  platform  at  Clarksville  in  the  county 
Mecklenburg. 

20th  question.  Yon  have  stated  that  Mr.  Langston's  supporters  did  all  they  could 
to  prevent  Arnold's  speakers  from  speaking.  Please  explain  a  little  more  fully  how 
they  did  this. 

(Note. — Objected  to  by  the  attorney  for  the  contestant  as  leading  and  as  being* 
cross-examination  and  not  direct.) 

Ans.  At  Clarksville  they  were  plainly  told  that  unless  they  were  there  to  talk  for 
Mr.  Langston  they  would  be  taken  from  the  stand ;  and  at  that  place  they  were  fur- 
ther told  that  they  did  not  intend  to  hear  any  speakers  unless  they  were  in  Mr. 
Langston's  interest.  At  other  places  they  would  get  together  a  good  number  of  peo- 
ple who  would  come  near  the  speakers'  stand,  howl  and  shout  for  Langston,  break  up 
the  meeting  by  that  means  if  possible,  or  get  into  a  general  row,  and  thereby  prevent 
Arnold's  speakers  from  proceeding  further. 

(Record  925.) 

W.  W.  Evans,  a  colored  member  of  the  legislature,  a  notary  public  of 
the  city  of  Petersburgh,  and  editor  of  the  Virginia  Lancet,  a  Republican 
newspaper  published  in  the  city  of  Petersburgh,  testified  as  follows  as 
to  Langston's  incendiary  speeches,  his  bad  conduct  in  the  canvass,  the 
intense  feeling  he  aroused,  and  the  violent  action  of  his  supporters : 

7.  Quest.  You  say  that  your  paper,  the  Virginia  Lancet,  is  a  Republican  newspaper, 
published  in  this  district.    Please  say  how  long  it  has  been  published,  and  what  other 


478  LANGSTON   VS.    YEN  ABLE. 

newspapers,  published  and  edited  by  colored  men  in  this  district,  were  in  operation 
prior  to  the  beginning  of  Mr.  Langston's  campaign  for  Congress  t — Answer.  The  Vir- 
ginia Lancet  was  started  in  1882.  It  has  been  rnnnmg  ever  since.  During  that  time 
two  papers,  viz,  the  Southern  Tribune  and  the  StarofZion,  were  edited  and  pub- 
lished by  colored  men.  At  the  time  when  Mr.  Langston  began  his  contest  for  Con- 
gress there  was  only  one  newspaper  published  and  edited  by  a  colored  man  in  this 
district. 

8.  Quest.  During  the  years  since  its  foundation  what  has  been  the  object  and  aim 
of  the  Virginia  Lancet  in  reference  to  the  colored  people,  and  what  has  been  its  posi- 
tion and  reputation  among  them  ? 

(To  which  question  the  attorney  for  contestant  objects,  as  having  no  relevancy  to 
any  matter  in  issue  in  this  case,  and  therefore  as  being  without  competency.) 

Answer.  The  Virginia  Lancet  has  aimed  to  advance  the  political  and  material  inter- 
ests of  the  colored  Ipeople.  It  has  had  the  reputation  of  being  the  organ  of  that  class 
©four  citizens  in  this  section. 

13.  Quest.  Please  state  as  fnlly  as  you  can,  what  was  the  character  of  the  canvass 
made  by  Professor  Langston  and  his  sup^iorters  in  furtherance  of  his  election  as  a 
Representative  in  Congress  from  the  Fourth  Congressional  district  of  Virginia. 

(To  which  question  and  any  answer  marie  thereto  the  att'y  for  contestant  objects  as 
necessarily  involving  matter  which  is  simply  hearsay  and  matter  of  mere  opinion 
without  reference,  and  so  without  bearing  in  any  proper  and  legal  sense  upon  any 
issue  involved  in  this  contest.) 

Answer.  To  say  that  it  was  bitter,  mean,  and  vile  will  express  it  feebly.  It  was  a 
system  of  organized  ostracism  of  every  man  who  dared  to  oppose  Mr.  Langstou's 
aspirations.  Mr.  Langston,  his  friends,  and  his  supporters  throughout  tlie  district 
held  up  to  ridicule  every  colored  man  who  supported  Judge  Arnold.  Whenever 
any  of  Judge  Arnold's  canvassers  went  into  the  counties  to  malie  speeches  iu  liis 
behalf  they  were  met  by  an  organized  crowd  of  Mr.  Langston's  supporters,  who 
used  all  their  powers  to  prevent  these  speakers  from  discussing  the  questions  which 
were  at  issue  in  this  district.  Many  of  such  supporters  of  Judge  Arnold  were 
forced  to  travel  many  miles  to  secure  accommodations  on  account  of  the  rancor 
and  bad  feeling  which  had  been  stirred  up  by  Mr.  Langston,  his  supporters,  and 
friends.  Not  only  was  this  true,  but  Mr.  Langston  and  his  supjiorters  left  notli- 
ing  undone  to  stir  up  bitter  relations  between  the  whites  and  blaclvs  of  this  dis- 
trict. They  went  so  far  as  to  demand  the  support  of  every  white  Republican  iu  the 
district  upon  the  penalty  that  they  were  never  to  be  voted  for  by  the  colored  voters 
unless  they  supported  him.  During  that  canvass  some  of  Mr.  Langston's  friends 
and  supporters  made  it  their  special  duty  to  insult  me  while  I  passed  along  the  streets, 
whenever  I  appeared  in  a  public  meeting,  ofttimes  coming  to  mj^  office  for  that  purpose 
Many  of  these  men  were  good,  honest,  and  industrious  citizens  who  were  incited  to 
tliese  acts  by  some  of  the  men  of  the  colored  race  who  claimed  to  be  intelligent  leadei-s. 
It  is  known  that  Mr.  Langston  openly  defied  the  Republican  organization  of  th<;  State 
and  nation,  and  that  he  had  the  support  of  none  of  the  loyal  Republicans  of  this  dihtrict 
after  his  nomination.  A  great  many  of  the  men  who  have  been  true  to  the  Republican 
party  in  the  past  were  misled  and  misguided,  and  gave  him  a  support  which  many  of 
them,  to  my  own  knowledge,  this  day  regret. 

14.  Quest.  What  was  the  especial  ground  of  difference  between  the  leading  colored 
men  who  supported  Judge  Arnold  and  the  supporters  of  Mr.  Langston  ? — Answer.  Tlie 
men  who  supported  Judge  Arnold  believed  that  the  success  of  the  Republican  party  in 
this  district  could  only  be  effected  by  giving  hearty  and  cordial  support  to  the  regular 
candidate  of  the  Republican  party.  Judge  Arnold  was  the  regular  nominee  of  tliat 
party  in  this  district  for  Congress.  Tliese  men  believed  that  by  supporting  any  inde- 
pendent, white  or  black,  they  would  injure  the  chances  of  the  success  of  the  party.  Mr. 
Langston  made  his  fight  from  the  beginning  on  the  ground  of  color.  The  men  who  sup- 
ported Judge  Arnold  couldnotsympathize  with  such  a  movement  because  they  believed 
that  it  would  be  impossible  to  win  in  any  way  that  would  advance  the  race  upon  such 
grounds.  Prof.  Langston  is  undoubtedly  one  of  the  most  cultured  of  the  men  that  has 
been  produced  by  the  negro  race  in  America.  His  reputation  as  an  orator  is  well 
kn'iwn.  His  ability  to  reach  the  masses  was  well  shown  in  the  recent  contest  for 
Congress.  He,  however,  got  on  the  wrong  side  of  the  question.  I  mean  by  that  that 
he  took  himself  outside  of  the  Republican  party.  The  men  who  supported  him  did  so 
on  account  of  the  fact  that  he  was  a  leading  colored  man.  In  this  you  will  find,  in 
some  measure,  the  reason  why  leading  colored  men  differed. 

15.  Quest.  Is  Prof.  Langston  a  man  of  family,  and  if  so,  where  does  his  family  live? — 
Answer.  Mr.  Langston  is  a  man  of  family.  I  have  had  the  pleasure  of  meeting  his 
wife.     I  think  his  family  live  in  Washington,  D.  C. 

16.  Quest.  Has  Prof.  Langston  any  reasons  for  taking  up  a  permanent  residence 
ai»art  from  his  wife  and  family? — Answer.  None  that  I  know  of. 

17.  Quest.  Has  Prof.  Langston  any  i)ermanent  house  and  home  in  the  State  of  Vir- 


LANGSTON    VS.    VENABLE.  479 

giniaT — Answer.  When  Prof.  LaDgston  came  to  Petcrsbnrg  in  1885  I  was  then  secre- 
tary of  the  Virginia  Normal  and  Collegiate  Institute.  I  ofttimes  had  reason  to  con- 
sult Prof.  Laugston,  who  was  at  that  time  the  president  of  that  institution.  He  re- 
sided then  at  the  corner  of  West  street  and  Leo  avenue.  I  think  he  has  called  that 
his  home  ever  since.  I  don't  know  positively  whether  that  is  his  home  or  not. 
(Record,  1038). 

We  have  now  quoted  sufficiently  from  the  record  in  this  case  to 
show  how  greatly  divided  the  Eei3ublicau  party  of  this  district  was  in 
the  fall  of  1888;  quite  enough  to  indicate  beyond  doubt  that  the  dis- 
seutions  in  its  ranks  were  of  such  a  character  as  to  disorganize  it  and 
give  a  harmonious  and  well-organized  opposing  party,  though  in  the 
minority,  every  hope  of  success;  that  the  Democratic  nominee  was  in 
a  position  to  draw  from  both  factions  of  the  Kepublican  party,  while 
Arnold  could  not  draw  from  Langston,  nor  Langston  from  Arnold. 

It  was  then  no  surprise  to  the  voters  of  the  State  when  the  result 
was  announced  after  the  returns  came  in  that  Venable  had  received 
13,298  votes,  Langston  12,657  votes,  and  Arnold  3,267  votes,  giviug 
Venable  a  plurality  of  641  votes. 

The  surprise  comes  now  when  the  Committee  on  Elections  of  the 
House  of  Eepresentatives,  by  a  vote  of  5  to  4  (two  Republican  and 
two  Democratic  members  being  absent,  and  two  Republican  members 
declining  to  vote),  finds  that  John  M.  Langston,  and  not  Edward  0. 
Venable,  was  duly  elected  to  a  seat  in  the  Fifty-first  Congress. 

As  members  of  this  committee,  we  had  carefully  examined  the  record 
in  this  case;  we  had  listened  attentively  to  the  oral  arguments  and 
closely  studied  the  briefs  filed,  and  we  had  come  to  the  deliberate  con- 
clusion that  no  partisan  feeling,  however  intense  or  blinding,  could  so 
warp  the  facts  or  exclude  the  testimony  as  to  result  in  a  finding  in 
favor  of  the  contestant. 

We  know  that  we  are  all  liable,  unconsciously  it  may  be,  to  be 
afiected  by  party  bias  and  to  have  our  judgments  swayed  from  the 
right  channel  by  partisan  prejudices;  but  we  felt  that  this  was  a  case 
so  plain  there  was  no  place  upon  which  to  rest  even  a  doubt,  and  that 
there  would  be  an  unanimous  decision  in  favor  of  the  contestee. 

In  fact,  we  believed  that  nearly  if  not  every  member  of  the  commit- 
tee had  rendered  a  verdict  against  the  contestant  in  his  own  mind  when, 
after  the  argument,  the  case  was  submitted,  and  we  were  astounded 
when  we  found  such  a  change  had  come  over  our  RepuDlican  colleagues. 

Usually,  in  fact  almost  universally,  when  a  contest  is  made  for  a  seat  on 
the  floor  of  Congress,  the  contestant  makes  charges  against  the  oppo- 
site political  party  to  which  he  belongs. 

A  Republican  contestant  charges  fraud  or  improper  conduct  upon  tlj^B 
part  of  the  Democratic  party,  and  vice  versa.  In  this  instance,  how- 
ever, the  contestant,  though  a  Republican,  bases  his  contest  almost 
exclusively  upon  charges  against  the  chairman,  committeemen.  Federal 
supervisors,  and  election  ofiflcers  of  his  own  party. 

In  the  record,  and  in  his  briefs,  he  charges  a  conspiracy  upon  the 
part  of  General  Mahone,  and  those  he  terms  "  Mahoueites,"  to  defraud 
him,  and  most  unmercifully  does  he  apply  the  lash  to  them. 

On  page  30,  of  one  of  his  many  briefs,  he  charges  General  Mahone 
with  former  frauds.  He  goes  back  to  the  years  1874  and  1878,  and 
arraigns  the  chairman  of  the  State  committee  of  his  party  with  ballot- 
box  stuffing  and  the  use  of  fraudulent  tickets.    He  says: 

In  the  year  1874,  when  Wm.  Hodges  Mann,  of  Nottoway  County,  ran  against  Hon. 
W.  H.  H.  Stowell  for  Congress,  and  in  the  year  1878,  when  Wm.  E.  Hinton,  jr.,  of 
Petersburg,  ran  against  Hon.  Joseph  Jorgenseon  for  Congress — while  General  Win. 


480 


LANQSTON   VS.    VENABLB. 


Mahone  was  an  active  partisan  leader  of  tbe  Democratic  oarty  in  the  Congressional 
district  of  which  Petersburg  was  a  part,  and  before  he  had  been  refused  the  Demo- 
cratic nominati<in  for  governor  of  Virginia— the  district  was  flooded  with  little 
ballots,  then  called  "  kiss- verse  ticliets,"  bearing  the  names  of  the  Demooratic  candi- 
dates for  Congress,  and  resembling  in  size  and  shape  and  texture  the  interest  coupons 
which  in  these  latter  days  are  clipped  from  corporation  coupon  bonds.  A  facsimile 
of  one  of  these  ballots  is  produced  here.     The  originals  were  printed  on  tissue  paper. 


City  of  Petersburgh. 
Virginia. 

ELECTION, 
November  3rd,  1874. 


For  Representative 

in  Congress 
From  4th  District; 

Judge 

WM.  H.  MANN, 

of 
Nottoway  County. 


Again,  on  page  35,  he  says : 

3.  It  is  alleged  and  proved  that  Mahone  procured  and  had  printed  and  circulated 
a  letter  from  Frederick  Douglass,  dated  August  1.^,  1866,  and  addressed  to  George 
Fayerman,  Peter  G.  Morgan,  and  other  political  intimates  of  Mahone,  opposing  the 
nomination  of  John  M.  Laugston  as  a  candidate  for  Congress,  at  the  Republican 
convention  then  called  to  be  held  in  Farmville  in  the  month  of  September  following. 
(Eec,  pp.  884,  886.) 

He  quotes  approvingly,  on  page  38,  the  following  attack  on  General 
Mahone,  which  appeared  in  the  columns  of  the  New  York  Tribune: 

General  Mahone's  charges  about  Mr.  Blaine's  conspiring  against  him  in  Virginia 
have  as  much  truth  in  them  as  the  statements  just  noted.  It  is  a  poor  cause  that  stands 
in  need  of  tactics  like  these,  and  Virginia  Eepublicans  will  do  well,  in  the  light  of 
this  exposure,  to  take  very  little  advice  from  General  Mahone  hereafter  as  to  their 
conduct  in  national  politics. 

•  *•••*« 

We  take  pleasure  in  saying  that  whereas  we  have  sometimes  suffered  ourselves  to 
b9  persuaded  in  the  past  that  General  Mahone  was  an  honorable  and  eflicient  leader 
of  Virginia  Eepublicauism,  our  better  judgment  hsis  always  inclined  ns  to  the  com- 
mon belief,  which  has  now  become  a  settled  conviction,  that  he  is  a  selfish  and  mali- 
cious trickster,  unfit  for  the  leadership  of  any  cause  which  has  not  for  its  sole  motive 
and  object  the  elevation  of  William  Mahone. 

Again  on  page  48,  he  says : 

Proof  of  the  enthusiastic  solidarity  of  the  colored  Eepublicans  could  not  further 
go.  What  chance  had  Arnold  and  Mahone,  or  Venable,  without  fraud  and  bribery, 
to  get  votes  out  of  such  a  constituency. 

The  testimony  in  other  parts  of  the  record,  and  the  incessant  wailings  of  Arnold 
andMahoue  and  Venable  eversince  this  contest  began,  prove  that  in  the  other  counties 
of  the  district  and  in  the  city  of  Petersburgh  the  feeling  was  as  intense,  and  the  pur- 
pose to  vote  for  Laugston  as  determined,  as  they  were  in  Sussex. 

No,  no!  no!!  Mahone's  opposition  to  Laugston  does  not  give  even  colorable  support 
to  Mr.  Venable's  pretended  plurality. 

FAME  PRETENSES. 


But,  in  very  truth,  the  reason  assigned  by  Mahone  as  excuse  for  his  opposition  to 
Langston's  candidacy  before  the  Farmville  convention,  was  a  false  pretense  ;  and  the 
colored  Eepublicans  of  the  Fourth  district  knew  it.  As  a  pretense,  it  was  good  enough 
and  plausible  enough  to  deceive  and  mislead  some  Eepublican  statesmen  who  were 
captivated  by  the  idea  of  winning  recruits  from  Democratic  ranks,  and,  unfortun- 
ately, were  persuaded  to  accept  Mr.  Mahone's  assurances  as  evidence  of  truth. 


LANGSTON   VS.    VENABLE.  481 

Again,  on  page  52,  be  assails  the  great  Republican  leader  of  his  party 
in  Virginia  in  the  following  style  : 

Mahone  foresaw  in  Langston  a  local  rival.  He  will  endnre  no  rivalry.  He  recoils 
from  the  perils  of  comparisons,  which  are  to  him  very  odious.  So  long  as  Langston 
might  wish  to  be  the  Republican  candidate  for  Congress  from  the  Fourth  Congres- 
sional district  of  Virginia  there  seemed  to  be  no  chance  lor  Mahone.  The  thought 
distressed  him.  One  can  imagine  Mahone  in  soliloquy,  muttering  the  words  which 
Prince  Henry  outspoke  in  the  altercation  with  Harry  Hotspur  which  preluded  their 
fatal  duel : 

I  am  the  Prince  ofWrhjales;  and  think  not,  [Langston], 

To  share  with  me  in  glory  any  more., 

Two  stars  keep  not  tbeir  motion  in  one  sphere ; 

Kor  can  one  [districtl  hear  the  douhle  reipn 

Of  [John  M.  Langston  J  and  the  Prince  of  W[h]ales. 

Belendo  est  Carthago  1  Langston  must  go  under!  And  now,  "grand,  gloomy,  and 
peculiar,  he  sits  upon  his  throne  a  sceptered  hermit,  wrapped  in  the  solitude  of  his 
own  originality." 

The  meanness  of  the  motive  was  as  patent  as  the  deceitful ness  of  the  pretense.  The 
negiroes  were  not  deceived.  But  they  were  deeply  grieved  to  see  a  selfish  and  un- 
sortipulous  man — who  enter^j^  the  Senate  of  the  United  States  in  December,  1881,  as 
a  Hancock  and  English  Democrat-Readjuster — permitted  again  to  wield  his  merciless 
and  masterful  lash,  and  to  insult,  degrade,  and  torture  the  African  race  in  tlie  person 
of  their  Representative ;  and  they  huddled  together  with  the  instinct  of  self-preserva- 
tion. If  all  the  ballots  which  were  truly  cast  and  deposited  for  Langston  by  the  col- 
ored Republicans  of  the  district  had  been  honestly  canvassed,  counted,  and  returned, 
Mr.  Langston  would  have  had  a  majority  over  both  of  his  competitors.  Mr.  Langston 
has  been  assured  by  many  colored  Democrats  that  they  voted  for  him. 

Read  here  how  he  pours  out  his  wrath  upon  the  "Prince  of  W(h)ales," 
as  he  contemj)tuously  terms  General  Mahone  in  his  soliloquy  above 
(page  57): 

The  contestee  and  his  advocates  reproach  Mr.  Langston  for  not  attending  a  meet- 
ing at  the  Academy  of  Music,  in  the  city  of  Petersburg,  when  Senator  Blair,  of  New 
Hampshire,  delivered  a  speech  under  the  auspices  of  General  Mahone.     They  say  : 

"You  chose  to  absent  yourself,  and  were  represented  at  that  meeting  only  by  a 
crowd  of  your  boisterous  and  ill-mannered  followers  and  supporters,  who  offered  in- 
sults to  General  Mahone  while  he  was  introducing  Senator  Blair  to  the  audience." 
(See  brief  for  contestee,  near  bottom  of  page  13.) 

What  tender  solicitude  for  Mahone! 

Mr.  Langston  was  not  there,  and  is  hardly  responsible  for  the  manners  of  "fol- 
lowers," who,  if  they  had  followed  him,  would  have  been  at  home.  As  was  exijected, 
Mahone  abused  the  confidence  of  Senator  Blair,  and  tried  to  use  his  name,  character, 
and  influence  for  the  purpose  of  insulting  and  degrading  the  colored  men  of  Peters- 
burg, and  Langston  as  their  representative.  Mahone  hired  the  hall  and  controlled 
it.  White  Republicans  were  admitted  upon  the  main  floor,  to  the  lower  jiortion  of 
the  house,  but  colored  Republicans  were  compelled  to  go  up  in  the  gallery.  This 
order  was  enforced  by  JohuCrosstick  and  E.  T.  Berry,  two  white  men  who  had  been 
policemen.  And  after  the  election,  both  of  said  persons  were  appointed  by  the  Dem- 
ocratic municipal  authorities  of  Petersburg  to  salaried  offices.  (Rec,  pp.  120,  536, 
etc.)  ^ 

But  he  does  not  stop,  as  we  have  said,  in  his  attacks  upon  the  chair- 
man of  the  State  committee  of  his  party,  but  in  his  notice  of  contest  and 
in  his  briefs  he  charges  the  Republican  judges  of  election,  Republican 
clerks  of  election,  and  Republican  Federal  supervisors  all  over  the  dis- 
trict with  ballot-box  stuffing,  false  counts,  and  frauds  generally. 

In  his  notice  of  contest  he  assails  the  returns  as  fraudulent,  and 
charges  the  election  ofiQcers  with  fraud  at  the  following  precincts : 

Lewiston,  Columbian  Grove,  Meherrin,  Brown's  Store,  Pleasant  Grove,  Rehobotli, 
Knight's  and  Oliver's  Mills,  and  Lochleven,  in  Lunenburg  County ;  Blackstone,  in 
Nottoway  County ;  Hicksford,  Ziou  or  Moss,  Belfield  and  Trotter's  Store,  in  Greenville 
County;  Rives,  in  Prince  George  County  ;  South  Hill,  in  Mecklenburg  County  ;  Balls- 
ville,  in  Powhatan  County;  Rice's  and  Spring  Creek,  in  Prince  Edward  County;  Till- 
man's and  Edmunds'  Store,  in  Brunswick  County;  New  Hope,  Sutherland,  and  Court 
House,  in  Dinwiddle  County;  first  election  district,  First  ward,  Third  Wiird,  Fourtb- 
Ward,  and  Sixth  ward.  Petersburg  City. 

H.  Mis.  137 31 


482 


LANGSTON    VS.    VENABLE. 


Now  let  US  see  to  what  party  or  parties  the  election  officers  who  are 
so  vigorously  assailed  by  the  contestant  belonged : 


Federal 
saper- 
visors. 

Judges. 

Federal 
super- 
visors. 

Judges. 

a 

*5 

a 
i-i 

1 

.... 
1 

.2 
5. 

i 

o 

o 

s 

1 

2 
2 
2 

c 
o 

p 

1 
"i' 

d 
a 
o 

3 

ij 

M 

1 
o 

i 

d 

a 

3 

P. 

2 
§ 

s 

1 

o 
Q 

Rivfs* .......... 

South  Hill* 

Ballaville* 

.... 

2 

Tilliiiaii  &  Eduiuuds' Store* 

Knight's  &  Oliver's  Mills*.. 

Sutherland*    

LI 

LI 

LI 

2 
2 
2 
2 
2 

.... 

Fiiat  ward,  first  precinctt . 
Third  ward 

1 

1 

1 

2 
2 

BelfieWt 

Fourili  ward*t - 

1 

.... 

2 

*No  testimony. 

tMuch  testimony  was  taljen  by  the  contestant  at  these  ijreciucts,  but  his  own  supporters  di.sproved 
his  charges,  and  he  abandons  them.  His  charges  embraced  27  precincts,  but  he  took  no  testimony  to 
sustain  his  allegations  at  14  of  them. 

It  will  be  observed  that  at  every  precinct  at  which  he  took  testimony, 
excepting  one,  there  was  a  Eepublican  official,  and  that  at  all  but  three 
there  were  Eepublican  Federal  supervisors,  and  two  of  these  three 
precincts  he  abandoned.     So  that  we  have : 

Precincts  assailed 27 

Precincts  where  no  testimony  was  taken 13 

Precincts  where  testimony  was  taken,  at  which  there  were  Eepublican  judges 12 

Precincts  where  testimony  was  taken,  at  which  there  were  Eepublican  Federal 
supervisors 9 

We  say  that  the  contestant  has  charged  the  election  officers  of  his 
own  party  with  the  great  crime  of  cheating  and  defrauding  him  out  of 
his  election,  and  that  he  comes  before  the  House  and  country  ari-aign- 
ing  generally  the  election  officials  of  the  party  of  which  he  professes 
to  be  such  a  warm  adherent,  as  deep-dyed  criminals. 

He  has,  however,  the  satisfaction  of  knowing  that  he  has  convicted 
Eepublican  officials  as  well  as  the  chairman  of  the  Eepublican  commit- 
tee of  the  State  of  Virginia  by  the  verdict  of  five  Eepublican  members 
of  the  Committee  on  Elections  of  the  House  of  Eepresentatives,  and 
that  while  these  officials  and  the  chairman  and  leader  of  his  party 
stand  condemned,  he  stands  approved,  indorsed  and  sustained  by  this 
verdict  of  five  out  of  nine  Eepublican  members  of  the  committee,  or 
five  out  of  fifteen  members  composing  the  whole  committee. 

Whether  the  House  of  Eepresentatives  with  its  three  hundred  and 
thirty  members  will  affirm  this  verdict  and  place  its  stamp  of  condem- 
nation upon  these  men  or  send  him  away  with  hit>  false  clamor  remains 
to  be  determined. 

We  propose  now  to  refer  to  the  positions  taken  by  the  majority  in 
their  report. 

POACH  AND  BOSS. 

They  claim  that  the  returns  from  Poach  and  Boss  precinct  in  Bruns- 
wick County,  which  gave  Langston  141  votes  and  Venable  C9  votes,  and 
which  were  rejected  by  the  canvassing  board,  should  be  counted. 


LANGSTON   VS.    VENABLE.  433 

We  fi  nd  that  these  returns  were  rejected  because  they  were  not  made  in 
accordance  with  the  directory  provisions  of  the  election  statute  of  Vir- 
ginia; and,  in  the  absence  of  any  suspicions  of  fraud,  or  evidence  tend- 
ing to  impeach  their  correctness,  we  think  they  should  be  counted. 


Venable. 


Langston. 


Take  their  retarned  vote 

Add  vote  at  Poach  and  Kosa  , 

Total 


13,298 
69 


12,657 
141 


13, 367 


12, 798 


Majority  for  Venable  569. 

MANNBORO,  AMELIA  COUNTY. 

The  majority  of  the  committee  reject  the  vote  at  this  precinct,  which 
was  counted  by  the  canvassing  board,  upon  the  ground  that  there  are  no 
returns. 

It  is  true  the  returns  from  this  precinct  were  not  signed  by  the  officers 
of  election,  and  if  the  question  had  been  raised  in  the  notice  of  contest 
and  no  evidence  taken  to  show  their  correctness,  we  would  agree  with 
the  majority  that  they  should  be  rejected.  But  the  notice  of  contest, 
will  be  examined  in  vain  for  any  charge  or  reference  to  this  precinct. 

It  is  unnecessary  to  refer  to  a  principle  so  well  settled  that  a  con- 
testant must  be  confined  to  his  allegations  and  the  contestee  can  not  be 
required  to  do  more  than  meet  them.  The  contestee,  finding  no  charge 
as  to  this  precinct,  w^as  justified  in  ignoring  any  attack  which  the  con- 
testant made  on  it  in  his  testimony.  The  vote  as  counted  was  Venable 
122,  Langston  111. 

SIXTH  WARD  OF  PETBRSBURGH. 

According  to  the  returns  from  this  precinct: 

Votes. 

Venable  received 352 

Langston  received 139 

Arnold  received 160 

Total ^ ^  651 

The  majority  of  the  committee  propose  "  to  readjust"  the  vote  at  this 
precinct  by  rejecting  the  returns  as  an  entirety,  and  then  giving  Langston 
377  votes  (which  they  claim  have  been  proved  to  have  been  cast  for 
him),  and  Venable  none. 

This  is  at  least  a  startling  proposition.    Let  us  examine  the  facts. 

The  election  was  conducted  by  two  Democratic  aud  one  Eepublican 
iudgf,  and  one  Democratic  and  one  Republican  cleric,  and  watched  by 
one  Democratic  and  one  Republican  Federal  supervisor.  All  were  intelli- 
gent white  men. 

B.  D.  Akers,  one  of  the  judges,  testified  that  he  turned  the  ballot-box 
upside  down  and  exposed  it  to  the  judges,  clerks,  and  United  States  su- 
l)er visors  in  the  morning,  before  the  balloting  commenced.  (Question  16, 
Kecord,  810.) 


484  LANGSTON    VS.    VENABLE. 

That  there  were  Kepublican  tickets  at  the  polls  in  circulation  with 
Venable's  name  on  them,  similar  to  the  regular  Eepublican  ticket  and 
Langston  ticket,  and  that  they  could  not  be  distinguished  except  by 
reading  them.  (Questions  54-62,  Record,  821.) 

That  both  of  the  supervisors  were  present  from  the  opening  of  the 
polls  to  the  closing.  (Question  75,  Record,  822). 

That  both  supervisors  personally  scrutinized  the  count  and  canvass 
of  all  the  ballots  cast.     (Question  85,  Record,  824.) 

That  during  the  entire  day  they  were  in  a  position  to  see  all  that 
transpired  in  the  voting  place,  and  that  the  Republican  supervisor  sat 
by  the  side  of  the  ballot  box  with  his  face  to  the  judges  and  clerks,  and 
could  see  the  ballots  as  they  were  handed  in  by  the  voters,  and  as  they 
were  deposited  by  the  judges  in  the  ballot  box.  (Question  92-4,  Record, 
824-5.) 

That  there  was  no  discrimination  made  between  white  and  colored 
voters,  and  many  colored  voters  voted  in  the  white  line ;  that  there  was 
no  unnecessary  delay  in  receiving  the  ballots,  and  that  a  vote  was  cast 
about  every  minute.     (Question  100-110,  Record,  825.) 

And  his  examinatiou-in-chief  concludes  with  the  following  question 
and  answer — the  one  as  searching  as  possible  and  the  other  thoroughly 
responsive : 

134.  Q.  Can  you  or  not,  noio  ihat  you  have  been  fully  questioned  as  to  the  eleelion  held  in 
sixth  ward,  in  the  city  of  I'etrrsburg,  on  the  sixth  day  of  November,  lrt88,  state  that  the 
returns  of  that  electioti,  as  made  to  the  clei'l"  of  the  hustings  court  of  I'etershnrg  and  now  on 
file  in  his  office,  contain  a  full,  complete,  and  accurate  statement  of  the  number  of  ballots 
cast  at  sixth  ward  voting  place  on  that  day  and  of  the  number  cast  for  each  candidate  voted 
for  at  that  election  ? — A.  Yes,  sir  ;  I  can  and  do  so  state.  (Record,  827.) 
Cross-exaiuiuation : 

37.  Q,  Were  auy  other  persons  present  in  the  polling-room  at  sixth  ward  on  GMi  of 
Nov.,  1888,  from  the  opening  of  the  polls  to  the  sealing  of  the  poll-books  and  ballots, 
besides  the  judges  and  clerks  of  election  and  U.  S.  supervisors  already  named f — A. 
No,  sir ;  excepting  the  boy  that  brought  the  iueals. 

38.  Q.  Were  auy  of  these  persons  absent  from  the  polling-room  at  any  time  after 
entering  upon  the  discharge  of  their  duties  to  said  sealing  of  the  poll-books  and  bal- 
lots ? — A.  No,  sir  ;  with  the  exception  of  one  time  when  Mr.  Scott  went  outside  to 
stop  the  loud  talking  and  noise,  he  being  the  only  one  to  my  recollection  that  left 
the  room  during  the  day. 

39.  Q.  Mr.  E.  T.  Berry,  U.  S.  supervisor,  has  testified  that  at  the  closing  of  the 
polls  the  box  was  opened  and  the  ballots  were  dumped  in  a  pile  upon  the  table.  Does 
that  agree  with  your  recollection  ? — A.  Yes,  sir. 

40.  Q.  You  have  stated  that  the  ballots  were  then  canvassed  by  the  judges.  Were 
the  ballots  opened  at  this  time,  or  counted  folded.  I  mean  just  as  voted  f — A.  Yes, 
sir.  I  canvassed  them  folded.  No  one  counted  them  but  myself,  with  the  judges 
and  supervisors  and  clerks  looking  on. 

41.  Q.  Did  the  ticket*  found  in  the  box  exceed  the  names  on  the  poll-books? — A. 
No,  sir.     It  was  short  one  ballot. 

42.  Do  you  remember  whether  there  were  any  tickets,  when  the  counting  came  to 
be  done,  having  the  name  of  one  candidate  for  Congress  scratched  therefrom,  and 
another  name  substituted?— A.  Yes,  sir.  There  were  twelve  scratched  ballots.  Ten 
of  them  had  Langston's  name  scratched  out  and  Venable's  name  writteu  in  pencil  in 
place;  one  with  Arnold's  name  scratched  out  and  no  name  written  in  the  place  of  it; 
one  with  Venable's  name  scratched  out  and  no  name  written  in  place  of  it. 

43.  Q.  Was  there  any  considerable  number  of  ballots  voted  openly  at  sixth  ward 
on  the  6th  Nov.,  1888? — A.  There  was.  There  was  a  good  many  while  and  a  good 
many  colored,  and  a  good  many  of  both  voted  their  ballots  folded. 

44.  Q.  When  a  ballot  was  handed  you  open,  did  you  not  necessarily  see  what  names 
some  of  them  contained  ? — A.  Yes,  sir. 

4.5.  Q.  You  always  folded  a  ballot  before  depositing  it  in  the  box,  did  you  not? — 
A.  Yes,  sir. 

46.  Q.  During  the  count  of  the  vote  to  ascertain  the  nnmber  of  votes  received  by 
rnch  candidate,  did  you  again  count  all  the  ballots  yourself  while  the  other  otBcers 
looked  on,  or  wire  the  ballots  divided  into  portions  and  each  portion  counted  by  a 
diti'ercnt  person? — A.  All  three  of  the  judges  separated  the  ballots  into  piles  of  fifty 
or  a  hundred,  dividing  the  Democratic  ballots  from  the  Kepublican.    As  soon  as  this 


LANGSTON    VS.    VENABLE.  485 

was  done  we  counted  the  Democratic  ballots  to  find  out  tbe  number  of  votes  cast  for 
the  electors,  and  Kepublicau  likewise.  Then  we  separated  the  Republican  ballots  to 
get  at  the  name  of  the  Congressmen  at  the  bottom,  and  we  separated  those  ballots, 
ptitting  the  Lnngston  ballots  to  themselves,  the  Venable  ballots  to  themselves,  and 
the  Arnold  ballots  to  themselves.  Then  we  counted  them  and  gave  each  candidate 
what  those  ballots  called  for.  I  counted  myself  all  of  the  tickets  for  Congressman, 
and  requested  Mr.  Berry  to  connt  them  after  me  for  fear  of  mistake.  This  being  fin- 
ished we  examined  the  scratched  tickets,  and  gave  to  each  one  what  those  tickets 
called  for. 

47.  Q.  During  all  this  separation  and  counting,  who,  if  any  one,  handled  the  bal- 
lots besides  yourself,  Eckles,  and  Lewis  ? — A.  No  one. 

48.  Q.  Did  neither  of  the  U.  S.  supervisors  or  clerks  help  to  divide  the  ballots  into 
piles  of  fifty  or  a  hundred  ! — A.  No  sir. 

49.  Q.  Did  not  Mr.  Berry  handle  the  ballots  when  he  counted  them  at  your  re- 
quest ? — A.  Yes,  sir ;  he  handled  them  to  see  if  my  count  was  correct  and  also  to  sat- 
isfy himself. 

50.  Q.  Did  Mr.  Scott  handle  the  ballots  to  the  same  extent  ? — A.  No,  sir  ;  he  never 
touched  a  ballot  during  the  day. 

51.  Q.  You  are  certain,  then,  that  neither  of  the  clerks  of  election  handled  the  bal- 
lots at  all  ? — A.  Yes,  sir  ;  I  am  certain.     (Record,  830,  831.) 

Tliis  witness  stands  unimpeached.  The  contestant  did  not  call  a  wit- 
ness to  testify  that  lie  was  not  a  man  of  truth  and  integrity.  He  is  an 
old  resident  of  Petersburg  and  has  held  responsible  positions  in  the  city 
government. 

We  refer  now  to  the  testimony  of  the  Eepublican  Federal  supervisor 
who  was  an  office  holder  for  years  under  the  Republican  administration 
of  the  city. 

E.  T.  Berry  testified  he  was  a  Republican ;  that  he  was  appointed 
Federal  supervisor  as  a  re])resentative  of  the  Republican  party  by  the 
Chief  United  States  supervisor,  M.  F.  Pleasants;  that  he  was  in- 
side the  voting  place  every  moment  of  the  time  between  the  opening 
and  closing  of  the  polls,  except  once  about  a  minute,  during  the  day- 
time, when  he  appointed  some  one  in  his  stead  and  retired  to  meet  a 
call  of  nature.     (Questions  11,  12, 14,  15,  16,  33,  Record,  843,  844.) 

That  he  agreed  to  act  as  supervisor  at  the  request  of  Harrison 
Waite,  chairman  of  the  Republican  City  Executive  Committee.  (Ques- 
tions 42,  43,  44,  ]^ecord,  844,  845.) 

That  he  personally  watched  the  counting  of  the  ballots  and  the  mak- 
ing of  the  return;  that  he  personally  scrutinized,  counted,  and  canvassed 
each  ballot  cast  at  that  precinct,  and  that  the  return  made  by  the  judges  and 
clerks  is  a  full,  fair,  and  accurate  statement  of  the  number  of  ballots  cast 
on  that  day  at  :  hat  precinct,  and  a  true  and  accurate  statement  of  the  num- 
ber of  ballots  cast  for  each  candidate  voted  fat'' at  that  election.  (Questions 
48,  49,  50,  Record,  845.) 

That  there  was  no  discrimination  between  white  and  colored  voters; 
that  he  saw  Republican  tickets  at  the  polls  with  Venable's  name  on 
them,  and  that  there  was  no  difference  in  tbe  appearance  of  the  various 
Rei)nblican  tickets  which  were  in  circulation.  (Questions  51,  58,  59, 
GO,  Gl,  Record,  845.) 

On  cross-examination  he  testifi^ed  that  the  judges,  clerks,  and  super- 
visors were  all  present  during  the  count  and  canvass  of  the  vote. 
(Record,  861.) 

This  witness  was  subjected  to  a  most  severe  cross  examination;  no 
less  than  four  hundred  and  thirty-four  cross-questions  were  propounded 
to  him,  but  the  only  effect  it  had  was  to  emphasize  the  fact  that  he  was  an 
ardent  and  enthusiastic  Reiniblican  and  a  close  political  friend  of  the 
Republican  State  chairman,  General  Mahone,  and  that  the  election  was 
fairly  conducted  and  the  returns  absolutely  honest. 

No  witness  was  called  to  attack  his  character. 


486  LANGSTON   VS.    VENABLE. 

E.  J.  Bond  testified  that  he  was  present  at  the  polls  when  they  were 
opened  and  was  there  all  the  time  until  they  were  closed,  with  the  ex- 
ception of  about  ten  or  fifteen  minutes  twice;  that  the  full  Demdcratic 
vote  was  out;  that  one  of  the  judges  displayed  the  ballot-box  to  all  that 
were  present  to  show  that  it  was  empty  before  any  ballots  were  received ; 
that  he  (the  witness)  objected  to  E.  T.  Berry  serving  as  Federal  supervisor 
upon  the  ground  that  he  had  not  been  appointed  for  that  precinct,  but 
withdrew  his  objection  when  Berry  presented  his  commission ;  that  when 
he  made  his  objection  there  were  supporters  of  Laugston  at  the  polls 
and  within  hearing,  but  they  made  no  objection  to  Berry;  that  Langston 
was  at  the  polls  also,  but  he  heard  of  no  objection  to  Berry  upon  his 
part;  that  Arnold  had  all  the  white  and  many  of  the  colored  Eepub- 
licans  supporting  him  at  this  precinct,  and  he  saw  many  colored  men  in 
line  with  Arnold  tickets  in  their  hands;  that  he  knew  of  Republicans 
who  voted  for  Harrison  and  Morton  and  Venable;  that  he  saw  no  dis- 
crimination upon  the  part  of  the  election  officers;  that  there  were  colored 
elubs  organized  for  the  support  of  Venable,  and  he  beard  of  colored  Ar- 
nold clubs.     (Record,  870-872.) 

His  examination-in-chief  concludes  with  the  following  questions  and 
answers: 

40.  Did  U.  States  Supervisor  Berry  remain  inside  the  polling  place  all  day  ? — Ans. 
He  did,  so  far  as  I  know,  as  I  did  not  see  him  come  out  any  time  dining  the  day. 

41.  After  the  polls  had  closed  did  you  see  any  of  the  oflScers  of  election  come  out  of 
the  polling  place  before  the  vote  had  been  counted? — Ans.  I  did  not. 

42.  After  the  polls  had  closed,  did  you  see  any  one  go  in  while  the  vote  was  being 
counted  and  canvassed  ? — Ans.  I  did  not. 

43.  Did  you  see  or  hear  the  officers  of  election  refuse  to  admit  any  one  applying  for 
entrance  ? — Ans.  I  did  not  hear  any  one  applying,  therefore  heard  no  one  refused. 

44.  Please  say  whether  or  not  any  act  of  fraud  or  illegality  came  under  your  obser- 
vation at  6th  ward  during  the  conduct  of  that  election. — Ans.  I  did  not. 

45.  Was  or  was  it  vot,  so  far  as  you  could  see,  a  fairly  conducted  election  f — Ana.  From 
the  lime  that  1  saw  them  in  the  morning  until  I  left  at  night,  I  saw  nothing  that  was  unfair 
or  unlawful.  Mr.  Alexander  Hamilton,  a  friend  of  Mr.  Venable,  was  present  some  time 
during  the  day,  and  asked  me  how  the  voting  ivas  progressing,  and  I  answered  "Very  icell." 
He  said  to  me,  "  Urge  your  judges  to  vote  the  voters  as  rapidly  as  they  can,"  which  I  did  do 
on  more  than  one  occasion.  On  the  occasion  of  Mr.  Butler  Mahone^s  timing  the  rating,  he 
said  to  me  "A  good  many  voters  at  that  precinct  were  complaining  to  his  father,  Genei-al 
Mahone,  that  they,  the  voters,  were  being  voted  too  slowly  at  6th  ward  precinct,  and  that  if 
they  were  not  voted  faster  he  tvould  be  obliged  to  have  the  judges  of  election  arrested  for  un- 
necessarily delaying  the  voting."  But  after  timing  them  he  was  satisfied,  and  said  he  would 
go  and  tell  his  father  that  he  thought  they  toei-e  being  voted  us  fast  as  possible. 

We  have  the  sworn  returns  of  the  judges  and  clerks  of  election,  Dem- 
ocratic and  Repnblican,  and  also  of  the  Federal  s^upervisors,  Demo- 
cratic and  Republican.  In  addition  we  have  the  depositions  of  one  of 
the  Democratic  judges  and  the  Republican  Federal  supervisor  swear- 
ing unqualifiedly  to  the  correctness  and  honesty  of  the  returns,  and 
other  evidence  of  a  corroborative  character. 

In  election  cases,  however,  before  a  return  can  be  set  aside,  there  must  be  proof 
that  the  proceedings  in  the  conduct  of  the  election,  or  in  the  return  of  the  vote,  were 
so  tainted  with  fraud,  that  the  truth  can  not  be  deduced  from  the  returns.  (Mc- 
Crary,  ^  534,  and  seq.) 

The  returns  must  stand  until  such  facts  are  proven  as  to  clearly  show  that  it  is  not 
true.     (McCrary,  $536.) 

The  official  acts  of  sworn  officers  are  presumed  to  be  honest  and  correct  until  the 
contrary  is  made  to  appear.     (McCrary,  $538.) 

The  presumption  is  that  an  electidu  is  honestly  conducted,  and  the  burthen  of  proof 
to  show  it  otherwise,  is  on  the  party  assailing  the  returns.  (McCrary,  $542;  Paine, 
$$759,762,  763,764.) 

The  maxim  that  "  fiand  is  not  to  be  presumed"  applies  as  well  to  the  conduct  of 
elections  and  making  returns,  as  to  transactions  between  individuals;  and  then-  is 
also  a  stronger  presuinptiou  against  fraud  which  arises  from  the  acts  of  public  officers, 


LANGSTON   VS.    VENABLE.  487 

acting  nnder  the  sanction  of  tLeir  official  oatlis;  and  notliiug  but  the  most  credible, 
positive,  and  unequivocal  evidence  should  be  i)ermitted  to  destroy  official  returns.  It  ia 
not  sufficient  to  cast  suspicion  iipou  them;  they  must  be  proved  fraudulent  before 
thev  are  rejected,  (6  A.  and  E.  En.  of  Law.  Elections,  p.  354,  and  authoritiee  there 
cited.     Paine,  $^759,  762,  763.) 

How  and  upon  what  evidence  do  tbe  majority  of  the  committee  in  the 
face  of  the  sworn  returns  of  the  officers  of  election  sustained  by  the 
depositions  of  the  officials  just  named  and  others,  propose  to  set  aside 
and  discard  the  returns  at  this  precinct  and  give  Langston  377  votes 
and  Venable  none? 

Ignoring  completely  the  testimony  just  quoted,  the  majority  refer  to 
and  set  out  in  extenso  the  testimony  of  two  witnesses,  Thomas  H.  Browu 
and  Pleasant  Goodwyn,  both  colored.  Brown  swears  that  he  was  at  the 
polls  all  day  except  about  fifteen  minutes,  assisting  Goodwyn  in  keep- 
ing the  names  of  the  colored  voters  who  voted  for  Harrison,  Morton, 
and  Langston,  by  checking  the  names  on  a  registration  list  as  Goodwyn 
named  them ;  that  he  could  tell  they  voted  for  Langston  because  he 
»aw  their  tickets  when  they  were  given  to  the  judge  of  election,  as  each 
of  them  voted  an  open  ballot ;  that  he  was  standing  within  2  feet  of 
the  door  and  about  4  feet  from  the  judge  when  at  the  ballot-box, 
and  that  370  names  were  recorded. 

Goodwyn  swears  that  he  was  engaged  in  recording  the  names  of 
colored  voters  who  voted  for  Harrison,  Morton,  and  Langston,  and  that 
he  occupied  a  chair  nearly  the  entire  day  within  2  feet  of  the  door  of 
the  polling  place  and  about  4  feet  from  the  judges  .who  received  the 
ballots  the  entire  day,  and  that  he  received  408  names  and  that  377  of 
them  voted  for  Langston. 

The  improbability  of  Brown  and  Goodwyn's  stories  is  so  strong  that 
we  can  not  see  how  they  can  be  relied  upon  to  set  aside  the  solemn  re- 
turns of  election  officers.  Common  sense  and  experience  teach  us  that 
it  was  impossible  for  these  men  to  observe  the  tickets  and  watch  the 
movements  of  377  men  running  through  an  entire  day — from  the  rising 
to  the  setting  of  the  sun — and  these  men  mixed  up  and  necessarily 
shifting  their  positions  in  a  crowd  of  600  or  700  voters,  and  at  the  same 
time  record  their  names  on  one  book  and  check  them  on  another. 

Besides,  it  is  hard  to  believe  that  physical  endurance  could  have  been 
equal  to  the  task  of  remaining  in  one  i)osition,  jammed  by  the  multi- 
tude for  twelve  hours  without  food  or  drink  (for  they  had  neither  ac- 
cording to  their  testimony),  and  without  nature  calling  them  away 
from  their  post  for  a  moment. 

We  say  to  believe  such  testimony,  if  it  stood  uncontradicted,  and  the 
witnesses  were  men  whose  characters  were  as  high  as  any  in  the  land, 
would  tax  human  credulity  too  much. 

But  they  are  contradicted,  in  that  it  is  shown  that  they  were  not  en- 
gaged in  taking  and  checking  the  names  at  the  point  they  swear  they 
occupied  the  entire  day. 

They  say  they  were  within  2  feet  of  the  door  and  about  4  feet  from 
the  judge  who  received  the  ballots,  and  that  they  saw  every  ballot  be- 
fore it  was  deposited,  and  saw  it  handed  to  the  judge  and  saw  the 
judge  deposit  it  in  the  box. 

Akers,  the  judge  who  received  the  ballots,  contradicted  them: 

71.  Q.  Did  you  or  not  see  Pleasant  Goodwyn  and  Thos.  H,  Brown  at  sixth  ward 
TOting  place  that  day  ?  If  you  did,  state  where  you  saw  them. — A.  I  do  not  know 
Pleasant  Goodwyn,  and  I  know  Thos.  H.  Brown  by  sight.  I  saw  Tho8.  H.  Broicn 
once  during  the  day,  and  he  was  standing  about  eight  feet  from  the  door  leaning  up  against 
the  fence.     (Record,  b22.) 


488  LANGSTON   VS.    VENABLE. 

75.  Q.  Pleasant  Goodwyn,  in  answer  to  question  15,  on  his  direct  examination  in 

behalf  of  the  contestant,  has  nsert  the  following  lan<;iiage:  "  I  was  as  close  to  the 
judge  as  the  wall  of  the  door  would  i)erin it  uie  betw<^eii  liini  and  the  box  "  Yoii  have 
said  that  you  do  not  know  Pleasant  Goodwjai  by  sight.  Did  you  or  not  see  any  per- 
son in  the  place  tlius  described  ? — ^A.  /  did  vol  see  any  one  but  William  H.  Jordan.  He 
was  the  only  one  I  saw  near  the  door.    (Record,  8'.i2.) 

Neither  Towiies  uor  Harris,  tlie  Laugstou  ticket  distributers,  eveu 
mention  the  names  of  Brown  and  Goodwyn  in  their  lengthy  depositions, 
and  no  other  witness  of  the  niany  exainined  by  the  contestant  refer  di- 
rectly or  indirectly  to  these  two  men  who,  according  to  their  statements, 
were  within  an  arm's  reach  of  the  ballot-box  every  minute  of  the  day 
scrutinizing  the  tickets  in  the  hands  of  the  voters,  receiving  and  check- 
ing their  names. 

Could  they  have  occupied  such  a  conspicuous  position  at  the  x>olls 
and  been  visible  only  to  each  other? 

We  insist  that  the  returns  from  this  precinct  can  not  be  destroyed  by 
such  testimony,  when  under  the  law  "  nothing  but  the  most  credible, 
positive,  and  unequivocal  evidence  should  be  permitted." 

Continuing  our  examination  of  the  evidence  as  to  this  precinct,  we 
find  that  Eichard  Townes  and  J.  York  Harris  testify  that  they  issued 
all  of  the  Langston  tickets  that  were  placed  in  the  hands  of  the  voters. 
(Record,  283-292.) 

Townes  testifies  he  issued  150.  (Record,  280.)  Harris  is  silent  as  to  the 
number  he  issued.  (Record,  291.)  So  there  is  no  proof  that  more  than 
150  Langston  tickets  were  issued,  and  the  returns  gave  him  139  votes. 

But  there  is  no  evidence  whatever  that  either  Townes  or  Harris 
issued  Langston  tickets  except  what  they  declare  themselves.  Townes 
says  he  got  the  tickets  from  Colonel  Brady  who  was  Langston's  mana- 
ger, but  Townes  could  not  read,  as  will  be  seen  from  the  following  ex- 
tract from  his  deposition : 

25th.  Question.  You  say  that  you  can  read  enough  to  see  that  the  name  of  John 
M.  Langston  was  on  your  ticket.  Can  you  spell  "  Jjangston"  ? — Answer.  I  don't  say 
that  1  can  spell  the  whole,  but  I  can  spell  the  first  three  letters  in  his  name. 

26th.  Question.  Can  you  tell  a  capital  L  from  a  capital  T  by  sight? — Answer. 
I  can't  say  that  I  can  ;  but  what  I  had  reference  to  on  the  ticket  the  reading  com- 
menced with  a  "  J."J-0-M — John — the  way  I  spelled  it. 

27th.  Question.  Then  this  J-O-M  was  the  ouly  part  of  John  M.  Langston's  name 
you  could  read,  was  it  ? — Answer.  Distinctly,  I  meant  to  say  and  I  know  that  there 
were  no  other  John's  name  on  the  ticket  who  were  running  for  Congress. 

28th.  Question.  Can  yon  tell  me  any  other  letters  at  all  which  followed  this  J-O-M 
on  the  ticket  ? — Answer.  J  can't  say  that  I  can  right  now. 

29th.  Qnestiou.  You  say  that  J-O-M  was  the  only  part  of  John  M.  Langston's  name 
which  you  distinctly  read.  Did  you  read  the  balance  of  his  name  indistinctly  f — 
Answer.  I  did  not.  Whenever  I  looked  at  the  ticket  and  discovered  the  letters  J-O-M 
I  was  satisfied  it  was  Langston's  ticket. 

30th.  Question.  You  are  satisfied,  then,  that  the  ticket  you  voted  had  J-O-M  on  it, 
are  you  ? — Answer.  I  am. 

31st.  Question.  Then  if  J-O-M  was  the  only  part  of  the  ticket  which  you  could 
read,  how  can  yon  swear  that  the  balance  of  the  name  was  the  balance  of  John  M. 
Langston's  name  f — Answer.  The  J-O-M  I  could  make  out  on  the  ticket  myself,  and  I 
had  my  brother-in-law  to  read  the  ticket  from  bottom  to  top  to  me  before  I  attempted 
to  vote;  and  not  ouly  him,  I  had  the  ticket  read  during  the  day  by  several  other 
young  men  that  were  around,  and  I  had|uo  other  tickets  in  my  possession.  (Rec,  286-7.) 

It  is  a  significant  fact  that  though  Colonel  Brady  lived  in  Peters- 
burgh,  he  was  never  called  as  a  witness  to  verify  the  statement  of 
Townes. 

We  must  infer  that  Brady's  testimony  would  not  have  aided  the  con- 
testant, else  it  would  have  been  taken. 

The  witnesses  who  testified  that  they  got  their  tickets  from  Townes 
could  not  read,  and  knew  nothing  but  what  Townes  told  them. 


LANGSTON   VS.    VENABLE. 


489 


So  we  have  simply  this  summarj'  of  facts  :  That  Townes,  an  ignorant 
colored  man  who  coukl  not  read,  issned  150  tickets  without  any  knowl- 
edge as  to  what  was  printed  on  them,  and  150  colored  men  who  could 
not  read  voted  them  without  knowing  what  tickets  they  were  voting 
except  what  Townes,  equally  as  ignorant  as  themselves,  told  them. 
Upon  this  statement  it  is  proposed  to  reject  the  returns  from  this  pre- 
cinct and  "  readjust"  them  by  counting  all  these  votes  and  many  more  for 
the  contestant. 

What  a  travesty  upon  justice  I 

The  sworn  declarations  of  the  three  judges,  two  clerks,  and  two 
Federal  supervisors  are  to  be  set  aside  as  false,  and  these  officers 
branded  as  liars,  perjurers,  and  ballot-box  stuflfers  upon  the  testimony 
of  Townes. 

We  can  not  believe  the  House  of  Eepresentatives  will  perpetrate 
what  we  conceive  to  be  so  great  a  wrong. 

But  iiursuiug  our  examination  of  this  precinct  still  further,  we  say 
there  is  no  evidence  that  these  voters  who  got  tickets  from  Townes 
(assuming  that  they  were  Langston  tickets)  voted  them.  No  one  saw 
the  tickets  they  actually  voted,  as  they  were  handed  to  the  judge  at 
the  ballot-box,  and  we  have  only  their  simple  statement  that  they 
handed  the  ballots  they  received  from  Townes  to  the  judge.  There  is 
no  way  to  contradict  this  statement,  and  therefore  how  dangerous  it 
is  to  receive  such  testimony  to  destroy  the  returns  of  public  officers,  in 
favor  of  which  the  law  raises  the  strongest  presumption.  Each  one  of 
these  voters  stands  upon  his  own  unsupported  statement,  while  every 
one  of  them  is  contradicted  by  all  the  oliicers  of  the  election,  so  far  as 
their  testimony  tends  to  falsify  the  return. 

In  this  uard  the  testimony  of  the  contestant's  witnesses  shows  that  there 
are  at  least  220  white  Democratic  voters  and  not  less  than  20  straight 
colored  Democratic  voters.  The  evidence  further  shoics  that  the  fidl  Dem- 
ocratic vote  was  out  at  the  election  in  question.  If  it  is  determined  to 
give  Langston  377  votes  upon  such  testimony  as  that  of  Brown  and 
Goodwyn,  a  modicum  of  justice  at  least  would  require  that  the  Demo- 
cratic vote  of  240  (2204-20)  should  be  given  to  Venable. 

Then  up  to  this  point  the  vote  would  stand  as  follows : 


Venable. 

Langston. 

Vote  as  returned ....... .. ..., ............ ...... 

13,298 
69 

12,657 
141 

Add  vote  at  Poach  and  Eoss ...-. .. . ...... .... 

Deduct  returned  vote  Sixth  ward,  Petersburgh ...... 

13,367 
352 

12,798 
139 

Add  "reformed"  vote,  Sixth  ward,  Petersburgh  .......... 

13, 015 
240 

12, 659 
377 

- 

13,255 

13, 036 

Majority  for  Venable  over  Langston,  219  votes. 

While  still  insisting  that  the  effort  to  impeach  the  returned  vote  in 
this  ward  has  utterly  failed,  yet  if  it  is  determined  to  discard  the  re- 
turns, the  vote  should  at  least  be  so  "readjusted"  as  to  give  the  contes- 
tee  the  well-defined  Democratic  vote  which  was  cast  for  him. 


490  LANGSTON    VS.    VENABLE. 

THIRD  WARD  OF  PETERSBURGH. 

The  vote  as  returned  from  this  precinct  was  as  follows : 

Votes, 

Veuable • 518 

Laugston 174 

Arnold 105 

Total 797 

The  majority  of  the  committee  propose  to  reject  these  returns  as  a 
whole  and  so  "  readjust"  them  as  to  give  Langstou  284  votes  and  Vena- 
ble  none. 

Against  this  proposition  we  enter  a  protest  far  stronger  than  even  in 
the  case  of  the  Sixth  ward. 

This  ward  extends  through  the  most  populous,  business,  and  resi- 
dence portion  of  the  city.  It  is  largely  a  white  ward  and  has  for  years 
been  known  as  a  reliable  Democratic  ward.  In  1886  it  elected  a  Dem- 
ocratic council  ticket  by  a  large  majority.  In  the  spring  of  1888,  Col- 
lier, Democrat,  received  484  votes;  Boiling,  Republican,  received  305 
votes,  in  the  mayoralty  election.  In  neither  of  these  elections  was  there 
even  a  suspicion  of  fraud.  It  is  the  place  of  residence  of  the  great  body 
of  white  Keimblicans,  who  were,  according  to  the  evidence,  almost 
unanimously  sui)porters  of  Arnold. 

The  majority  of  the  committee  in  their  report  base  their  conclusions 
upon  the  testimony  of  Matt  N.  Lewis  and  W.  J.  Smith. 

Lewis  testifies  he  kept  a  record  at  the  polls  of  tnis  ward  of  the  votes 
cast  for  Langston;  that  he  stood  right  at  the  entrance  where  the  col- 
ored voters  approached  the  ballot-box,  and  where  he  could  see  the  bal- 
lots given  to  the  judge  who  received  the  ballots  and  deposited  them  in 
the  box;  that  he  was  there  from  sunrise  until  sunset,  only  leaving  once 
for  about  thirty  minutes;  that  he  saw  and  read  the  ballot  of  every 
voter  wliuse  name  he  checked  on  his  book  and  he  saw  each  ballot  he 
checked  dei)osited  in  the  ballot-box;  that  he  entered  himself  in  his 
book,  in  his  own  handwriting,  all  the  names  witli  the  exception  of  a  few 
that  were  entered  during  the  thirty  minutes  he  was  absent  from  the 
l)olls;  that  he  read  each  ballot  caretully.  He  gives  the  names  of  286 
voters  as  having  been  recorded  by  him  and  as  having  voted  for  Lang- 
ston except  two.  He  says  16  of  the  286  were  entered  during  his  ab- 
sence by  Smith. 

This  is  a  full  summary  of  this  man's  testimony. 

Before  introducing  tlie  evidence  thoroughly  contradicting  the  state- 
ments of  this  witness  it  may  be  well  to  indicate  the  character  of  man 
he  is: 

In  the  hustings  court  of  the  city  of  Petersburg,  October  21,  1887,  C.  H.  Cuthbert, 
foreman,  W.  H.  Harrison,  J.  B.  Brady,  J.  P.  Hoag,  John  Berry,  and  Joliu  H.  Bell  were 
sworn  as  grand  jurors  for  the  body  of  this  city,  and  having  received  their  charge  re- 
tired to  their  room,  and  after  some  time  spent  therein  returned  into  the  court  and 
presented  an  indictment  against  Matt  N.  Lewis — "  a  true  bill" — which  is  as  follows, 
viz: 

State  of  Virginia, 

City  of  Petersburg,  to  wit : 
In  the  hustings  court  of  the  said  city,  the  jurors  of  the  Commonwealth  of  Virginia, 
in  and  for  the  body  of  the  city  of  Petersburg,  and  now  attending  the  said  conrt, 
upon  their  oath  present,  that  on  the  30th  day  of  August,  in  the  year  18H7,  in  said  city, 
T.  J.  Jarratt  was  the  legally  qualified  mayor  of  said  city,  and  as  such  a  justice  of  the 
peace  thereof,  anil*  that  Matt  N.  Lewis,  on  said  day,  in  said  year,  in  said  city,  being  an 
evil  disposed  person,  and  unjustly  and  unlawfully  iuteudiug  to  defame,  asperse,  scan- 


LANGSTON    VS.    VENABLE.  491 

dalize,  and  vilify  the  character  of  the  said  T.  J.  Jarratt,  and  to  insinnate,  aud  cause  it 
to  be  believed  that  the  said  T.  J.  Jarratt  had  been  guilty  of  gross  misconduct  in  hia 
said  office  of  mayor  of  said  city  aud  justice  of  the  peace  as  aforesaid,  did  unlawfully, 
maliciously,  wickedly,  and  scandalously  com])ose,  write,  print,  and  publish,  and  did 
cause  aud  procure  to  be  composed,  written,  printed,  and  published  in  a  certain  public 
newspaper,  entitled  the  "Daily  luilex  Appeal,"  which  newspaper  was  then  and  there 
circulated  in  said  city,  a  certain  false,  wicked,  mischievous,  and  scandalous  libel  of 
and  concerning  the  said  T.  J.  Jarratt,  and  of  and  concerning  his  official  conduct  in 
his  said  office  of  mayor  of  said  city  and  justice  of  the  peace  as  aforesaid,  aud  of  and 
concerning  the  administration  of  pilblic  justice  in  the  mayor's  court  of  said  city 
Avhilst  he,  the  said  T.  J.  Jarratt,  was  presiding  and  sitting  therein  as  mayor  of  said 
city  aud  justice  of  the  peace  as  aforesaid,  which  wicked,  mischievous,  and  scandalous 
libel  is  lu  the  words  and  figures  as  follows,  to  wit : 

"  COMMUNICATED. 

"At  a  meeting  of  colored  men,  called  on  Monday  evening,  August  29,  1887,  the 
following  resolutions  were  offered  aud  adopted  : 

"  Whereas  on  Tuesday,  August.  23, 1887,  an  unsophisticated  colored  man  (Ed.  Eidley), 
in  an  unguarded  moment,  assaulted  a  lady  who  had  first  assaulted  him,  he  was  set 
upon  by  a  crowd  of  white  men  and  most  brutally  and  unmercifully  beaten,  thereby 
taking  the  law  in  their  own  hands; 

"  Whereas,  although  he  (Ed.  Eidley)  applied  to  the  proper  authorities  for  warrants 
for  the  punishment  of  his  assailant,  he  was  denied  that  right,  which  is  common 
property  of  all  American  citizens,  'the  right  of  protection  by  law,'  and  instead  of  be- 
ing the  complainant  he  was  forced  to  be  the  defendant  before  the  laws  (he,  said 
Matt  N.  Lewis,  meaning  one  Fed  Ridley,  sometimes  called  Edward  Eidley,  who  on 
the  25th  day  of  August,  in  said  year,  was  convicted  before  him,  said  T.  J.  Jarratt, 
mayor  of  said  city  aud  justice  of  the  peace  as  afoiesaid,  of  having  made  an  assault 
in  aud  upon  one  Louisa  F.  De  Jaruette,  in  said  city,  on  said  23d  day  oi  August,  in 
said  year); 

"  Whereas  the  mayor  of  our  city,  the  proper  person  from  whom  all  citizens  expect 
even-handed  and  equal  justice,  has  seen  fit  (yielding  to  a  false  and  mean  clamor  of 
supposed  public  sentiment)  to  impose  a  most  extortional  fine  and  unprecedented  sen- 
tence upon  this  poor  colored  man; 

"  Whereas  the  mayor  has  had  numerous  cases  of  the  same  nature  and  kind,  i.  e.,  the 
case  of  Mr.  W.  I.  Jarratt,  vs.  his  cook,  the  case  of  W.  E.  Wyatt  V8.  a  colored  woman, 

the  case  of Clarke  vs.  a  colored  girl  in  the  employ  of  his  father  (T.  Jeil",  Clarke), 

and  these  cases  were  more  aggravated  than  that  of  Eidley's,  and  the  mayor  never  has 
im])08ed  further  than  a  small  line  in  either  case:  Therefore, 

'Besolred,  That  we  condemn  his  sentence  in  this  case  of  Ridley  as  that  of  a  preju- 
dicial officer,  a  bias  judge,  and  unqualified  chief  magistrate,  and  further  character- 
ize the  whole  affair  as  an  outrage  and  disgrace  to  the  civilization  of  the  19th  ceutury, 
and  a  travesty  upon  justice. 

"Matt  N.  Lewis, 
"  W.  N.  Smith, 
"  H.  0.  Kennedy, 

^' Committee.^' 

"  au.  30-lt " 
(he,  said  Matt  N.  Lewis,  meaning  that  he,  said  T.  J.  Jarratt,  was  the  mayor  of  said 
city  referred  to  in  said  libel,  and  that  his,  f  aid  T.  J.  Jarratt's,  senteuce  in  said  case 
of  said  Ridley,  convicted  as  aforesaid,  was  the  official  act  of  a  prejudiced,  biased,  and 
and  unqualified  mayor  of  said  city,  and  as  such  a  justice  of  the  peace  as  aforesaid) 
to  the  great  damage  and  infamy  of  the  said  T.  J.  Jarratt,  to  the  great  scandal  and 
dishonor  of  public  justice,  and  against  the  peace  and  dignity  of  the  Commonwealth 
of  Virginia. 

Ujion  the  testimony  of  T.  J.  Jarratt,  D.  L.  Selke,  and  F.  R.  Russell,  T.  C.  Johnson, 
W  H.  Jones,  T.  G.  Watkius,  sworn  in  court  aud  sent  to  the  grand  jury  to  give  evi- 
dence. 

John  C.  Armistead,  C. 

And  in  said  court  Monday,  Jan  nary  30,  1888. 

The  Commonwealth  of  Va.,  prosecuting,  against  Matt  N,  Lewis,  defendant.    lud'ci, 

misd'm'r. 

This  day  came  as  well  the  attorney  for  the  Commonwealth  as  the  defendant  in 
own  i)r(i|)er  person,  and  thereupon  said  defendant  pleaded  guilty,  and  a  jurv,  to  wit, 
G.  W.  Bain,  J.  W.  Wheary,  E.  M.  Allen,  C.  H.  Marshall,  J.  T.  Ashby,  E.  F.  Hobbs,  C.  J. 


492  LANGSTON    VS.    VENABLR. 

Walthall,  R.  T.  Coghill,  A.  J.  Clements,  E.  W.  Sydnor,  E.  J.  Armstrong,  andj.  T.  Gar- 
ret r,  was  selected  by  ballot  and  dnly  swom  by  consent  of  the  deteudant,  and  having 
heard  the  evidence  of  witnesses  and  arguments  of  counsel,  returned  their  verdict  as 
follows:  We,  the  jury  find  the  accused  guilty,  and  make  the  fine  tweuty-tive dollars. 
Therefore  it  is  considered  by  the  court  that  the  Conimoinvealtli  recover  against  the 
said  defendant  said  fine  of  $25  and  the  costs  of  his  own  prosecution. 

Copies. 
Teste : 

Ro.  Gilliam,  ClerJc. 
(Record  989-991.) 

This  hioh-handed  act  npon  the  part  of  this  man  is  not  calculated  to 
commend  him  to  favorable  consideration.  The  mayor  of  the  city  of 
Petersbnrgh,  who  was  aRepublican,  was  libeled  by  this  would-be  exem- 
plar of  public  morals  because  he  refused  to  issue  a  warrant  for  the  ar- 
rest of  a  white  lady,  for  "assaulting  an  unsophisticated  colored  man" 
who  in  "an  unguarded  moment"  had  committed  au  assault  upon  her. 

But  now  to  the  contradictions  of  this  witness. 

German  H.  Gill,  Federal  Supervisor. 

22d.  Question.  Do  you  know  a  colored  man  called  Matt  N.  Lewis  ? — A.  Yes. 

23d.  Question.  Did  you  see  him  on  the  6th  of  November,  1888;  and  if  so,  state 
•where  he  was,  what  he  was  doing,  and  how  long  he  staid  at  the  3d  ward  polls  on 
that  day? — Ans.  I  saw  him.  He  stood  just  opposite  the  door,  about  4  feet  distant. 
Pie  seemed  to  he  keeping  a  tally  of  the  colored.  He  was  there  about  two-thirds  of 
the  time.  He  was  away  several  times  during  the  day,  making  in  all,  1  should  judge, 
about  one-third  of  the  day  that  he  was  absent. 

24th.  Question.  It  has  been  testified  by  the  said  Lewis  in  this  case  that  he  was 
there,  i.  e.,  immediately  in  front  of  the  3d  ward  ballot-box,  from  sunrise  until  sunset, 
only  leaving  once  about  thirty  minutes.  Please  state  whether  or  not  the  said  testi- 
mony is  true,  and  your  reasons  for  your  answer? — Ans.  It  is  not.  My  reason  for  so 
stating  is  that  another  took  his  place  on  more  than  one  occasion  that  day,  and  I  saw 
him  several  times  walk  away  from  his  position  20  or  30  feet,  and  would  renniin  away 
for  several  minutes  conver.siug  with  parties  around  the  polls. 

25th.  Question.  Were  the  jjersous  who  kept  his  tally-book  in  his  absence  under  his 
inmiediate  superintendence  anddirection  when  they  entered  the  names  of  voters  upon 
their  books  ? — Ans.  No,  sir. 

26th.  Question.  There  have  been  filed  in  the  record  as  a  part  of  the  testimony  of 
the  said  Lewis  four  books  purporting  to  be  the  tally -books  which  he  kept  on  Novem- 
ber 6th,  18ri8,  at  the  3d  ward  polls,  containing  the  names  of  more  than  200  voters  whose 
ballots  he  swore  were  given  for  Jno.  M.  Langston.  In  answer  to  the  following  ques- 
tion asked  the  said  Lewis  on  hio  direct  examination,  to  wit,  "  When  and  under  what 
circumstances  did  you  particularly  observe  the  ballot  of  each  colored  voter  before 
recording  his  name  in  said  book,"  the  said  Lewis  replied:  "I  read  his  ballot  care- 
fully, and  after  I  had  seen  the  judge  to  whom  he  handed  his  ballot  deposit  it  in  the 
ballot-box  I  then  placed  his  name  on  my  book."  Please  state  whether  this  reply  of 
the  said  Lewis  is  true,  and  give  your  reasons. — Ans.  It  can  not  be  true.  For  the  reasons 
that  unless  the  ballots  were  handed  by  the  voters  to  Lewis  he  could  not  read  them 
carefully,  which  was  not  done.  The  voters  coming  up  in  line  handed  their  ballots  to 
the  judge  without  passing  them  to  Lewis  for  examination.  A  large  number  of  them 
he  could  not  have  read  at  all,  the  parties  not  showing  or  holding  them  to  him  for 
that  purpose  ;  at  least  one-half  or  more  voting  folded  or  closed  ballots. 

27th.  Question.  Did  you  see  any  voter  hold  his  ballot  before  Lewis  for  examina- 
tion ?  —Ans.  No  ;  not  directly  to  Lewis,  1  saw  several  hold  their  ballots  above  their 
heads  unfolded,  and  it  would  have  been  impossible  for  Lewis  to  see  what  names  were 
on  the  ballots,  unless  he  had  remarkable  eye-sight.  I  was  as  near  to  them  as  he  with 
glasses  on  and  I  could  not  read  them. 

28th.  Question.  Would  your  answers  to  the  26th  and  27th  questions  apply  equally 
to  the  parties  who  kept  the  books  in  the  absence  of  Lewis? — xVns.  They  would. 

29th.  Question .  Do  you  know  the  fact  that  it  was  suggested  at  the  time  by  parties 
about  the  polls  that  the  Langston  tally-keepers  were  recording  votes  cast  for  one  of 
the  other  candidates? — Ans.  Yea;  I  heard  the  report  and  heard  parties  joking  Lewis 
and  others  about  it. 

30th.  Question.  Were  there  any  ballots  distribnted  at  the  3d  ward  polls  bearing  the 
Re])ublican  Pret<idential electors  with  the  name  of  E.  C.  Venable  for  Congress? — Ans. 
Yes;  there  were  ballots  headed  "Regular  Republican  ticket"  which  had  E.G.  Venable'n 
name  on  them  for  Congress  ;  and  I  believe,  to  the  best  of  my  knowledge,  thatanum 
ber  of  men  entered  by  Lewis  upon  his  books  voted  the  said  ticket. 


LANGSTON   VS.    VENABLE.  493 

3l8t.  Question.  Were  there  any  ballots  deposited  in  the  box  wherein  the  names  of 
the  Democratic  candidates  were  written  by  hand;  and  state  why  such  ballots  were 
so  written? — Ans.  Yes;  I  believe  that  these  ballots  were  so  written,  because  the  par- 
ties voting  them  wished  to  conceal  the  fact  that  they  voted   for  E.   C.  Venable. 

(Record  987.) 

He  contradicts  Lewis  in  bis  statement  that  he  (Lewis)  was  at  the  polls 
all  the  time.  He  contradicts  him  in  his  statementthat  he  examined  the 
ballots  as  the  voters  approached  the  polls  and  shows  that  it  was  impos- 
sible for  him  read  them.  He  says  Lewis  was  at  the  iioUs  about  two- 
thirds  of  the  day  only. 

Is  this  man  of  high  character  or  Lewis  to  be  believed?  We  prefer 
to  rely  upon  the  testimony  of  Gill. 

Another  witness  contradicts  Lewis. 

James  M.  Young. 

Ist.  Question.  (By  counsel  for  contestee.)  What  is  your  age,  occupation,  and  resi- 
dence ? — Ans.  I  am  29  years  old  ;  my  occupation,  police  oflficer  for  the  city  of  Peters- 
burg; my  residence,  corner  Sycamore  and  Oak  streets,  3d  ward. 

2d.  Question.  Where  were  you  on  election  day,  November  6th,  1888? — Ans.  I  was  at 
the  3d  ward  precinct. 

3d.  Question,  Were  you  on  duty  there  that  day  ? — Ans.  I  was. 

4tb.  Question.  What  time  did  you  get  to  the  polls  on  that  day  and  how  long  did  you 
stay  there  ? — Ans.  Well,  sir,  I  think  it  was  after  I  had  eaten  breakfast,  about  7  or  8 
o'clock.     I  stayed  there  all  day. 

.'Sth.  Question.  During -the  time  you  were  at  the  polls  did  you  see  M.  N.  Lewis,  a 
witness  for  the  contestant  iu  this  case? — Ans.  Yes,  sir. 

6th.  Question.  The  said  Lewis  has  testified  upon  his  direct  examination  as  follows: 
"1  stood  right  at  the  entrance  where  the  colored  voters  approached  the  ballot-box, 
where  I  could  see  the  ballots  given  by  the  voter  to  the  judge,  who  received  the  bal- 
lots and  deposited  them  in  the  box.  I  was  there  from  sunrise  until  sunset,  only  leav- 
ing once  about  thirty  minutes."  Please  consider  this  statement  carefully  and  say 
if  you  know  whether  it  is  true,  and  give  your  reasons. — Ans  He  is  mistaken.  He 
left  there,  sir,  two  or  three  times  during  the  day.  I  mean  the  door  where  they  were 
voting.  I  missed  him  away  from  there.  I  noticed  that  he  was  gone.  I  noticed  him 
on  account  of  his  being  around  there  and  taking  an  active  part  in  the  canvass  and 
election.     (Eecord,  970,  971.) 

George  W.  Dunn,  another  witness,  contradicts  Lewis  in  the  most  em- 
phatic manner. 

Ist.  Question.  What  is  your  age,  occupation,  and  residence? — Ans.  Age,  36;  ocou- 
patioB,  police  officer  of  the  city  of  Petersburg;  residence.  Hotel  Gary,  Tabb  st.,  3d 
wajd. 

yd.  Question.  Where  were  you  on  the  6th  day  of  November,  1888,  election  day? — 
Ans.  At  the  3d  ward  voting  precinct. 

3d.  Question.  Were  you  on  duty  during  that  day? — Ans.  I  was. 

4th.  Question.  At  what  time  did  you  go  to  the  3d  ward  polls  and  how  long  did  you 
stay  there? — Ans.  I  went  there  at  sunrise  and  remained  the  whole  day,  with  the  ex- 
ception of  about  three-quarters  of  an  hour. 

5th.  Question.  During  the  time  that  you  were  present  at  3d  ward  polls  did  you  see 
one  M.  N.  Lewis,  a  witness  for  the  contestant  in  this  case? — Ans.  I  did. 

6th.  Question.  The  said  Lewis  has  testified  upon  his  direct  examination  in  this  case 
as  follows  :  "I  stood  right  at  the  entrance  where  the  colored  voters  approached  the 
ballot-box  (meaning  the  ballot-box  of  3d  ward  polls),  whore  I  could  see  the  ballots 
given  by  the  voter  to  the  judge  who  received  the  ballots  and  deposited  them  iu  the 
box.  I  was  there  from  sunrise  until  sunset,  only  leaving  once  about  thirty  minutes." 
Please  consider  this  answer  carefully  and  say  if  you  know  whether  the  same  is  tnie, 
and  give  your  reasons  for  your  answer. — Ans.  It  is  not  true.  Mr.  Lewis  had  a  position 
that  he  could  see  the  ballot  about  an  hour  and  a  half.  He  was  obstructing  the  voters,  and 
I  removed  him  from  his  position .  He  then  occupied  a  place  on  an  old  .stand,  about  ten 
feet  from  the  judge  of  election.  He  remained  in  that  position  about  half  an  hour.  He  then 
left  the  precinct.  I  didn't  see  him  anij  more  until  about  twelve  o'clock.  He  was  coming 
from  towards  dth  icard  pre<nnct.  He  then  disappeared  again  and  returned  late  in  the 
evening. 

7th.  Question.  There  have  been  filed  in  the  record  as  a  part  of  the  testimony  of 
the  said  Lewis  four  books  purporting  to  be  the  tally-books  which  he  kept  on  Novem- 
ber 6th,  1888,  at  the  3d  ward  polls,  containing  the  names  of  more  than  200  voters, 
whoso  ballots  1^  swore  were  given  for  John  M.  Langston.     Iu  answer  to  the  follow* 


494  LANGSTON   VS.    VENABLE. 

inj<  qnestion  asked  the  said  Lewis  on  his  direct  examination,  to  wit:  "When,  and 
nuder  what  circumstances,  did  yon  particularly  observe  the  ballot  of  each  colored 
voter  before  recording  bis  uame  in  said  books  f"  the  said  Lewis  replied  :  "  I  read  his 
ballot  carefully,  and  after  I  had  seen  the  judge  to  whom  he  handed  bis  ballot  deposit 
it  in  the  ballot-box  I  then  placed  his  name  on  my  book."  Please  state  whether  this  re- 
ply of  the  said  Lewis  is  true,  and  give  your  reasons. — Aus.  It  is  not  true.  All  the  colored 
voters  were  in  a  live  separate  from  the  rvhites.  They  had  several  parties  giving  them  tick- 
ets, and  it  was  impomihle  for  any  one  to  tell  how  they  xccre  voting.  The  colored  ially-iook 
of 'Ml  ward,  on  Mr.  Langston^s  side  was  kept  by  two  or  three  different  parties,  and  the  posi- 
tion that  they  held  they  could  not  have  told  one  ticket  from  another. 

(NOTK. — J.  M.  Taylor,  esq.,  counsel  for  the  contestee,  appeared  and  asked  to  be 
entered  as  counsel  of  record.) 

8th.  Question.  Please  state  whether  or  not  you  have  attended  3d  ward  polls  at  other 
elections  prior  to  November  6th,  1888,  and,  if  so,  how  many. — Ans.  I  have  attended 
two  others  prior  to  the  Presidential  election. 

9th.  Question.  Is  it  the  custom  at  the  3d  ward  polls  for  the  colored  voters  to  vote 
open  or  folded  ballots? — Ans.  They  have  been  voting  to  suit  themselves  in  the  last 
two  or  three  elections,  and  they  would  allow  no  one  to  see  their  tickets;  and  the  ma- 
jority of  them  would  allow  no  one  to  see  their  tickets. 

10th.  Question.  Do  you  mean  to  say  that  on  November  6th,  1888,  the  majority  of  the 
colored  voters  would  allow  no  one  to  see  their  tickets? — Ans.  I  do.  They  had  two 
qr  three  ticket-holders,  and  they  were  giving  out  different  kinds  of  tickets.  After 
tney  got  in  line  the  majority  of  them  refused  to  show  their  tickets.  They  did  not 
want  any  one  to  know  how  they  voted;  for  Langston,  Venable,  or  Arnold. 

llth.  Question,  Did  you  see  any  considerahle  number  of  colored  voters  show  their  tickets 
to  the  said  Letvis,  or  to  one  W.  J.  Smith,  or  to  one  S.  B.  McE.  Jones,  who,  as  the  said  Lewis 
testified,  kept  his  tally-books  in  his  absence  f — Ans.  I  did  not. 

I'Zth.  Question.  Would  you  have  known  such  a  fact  if  it  had  existed? — Ans.  I  think  I 
should. 

13th.  Question.  Were  there  any  tickets  with  the  name  of  E.  W.  Arnold  for  Congress 
distributed  to  the  colored  voters  at  3d  ward  polls  November  6th,  1888? — Ans.  There 
was. 

14th.  Question.  Were  there  any  tickets  bearing  the  Repub]i'}au  Presidential  electors 
with  the  name  of  E.  C.  Venable  for  Congress  distributed  to  the  colored  voters  at  3d 
ward  polls  November  6th,  1888? — Ans.  There  were  a  great  many  distributed  of  that 
kind. 

15th.  Question.  Were  there  any  tickets  written  by  hand  bearing  the  regular  Demo- 
cratic nominees  distributed  to  the  colored  voters  at  3d  ward  polls  November  6th, 
1888  ? — Ans.  I  didn't  see  any. 

16th.  Question.  Was  it  possible  for  any  person  standing  outside  of  the  polls  at  any 
place  to  say  how  the  colored  voters  cast  their  ballots,  and  give  your  reasons? — Ans. 
It  was  not.  No  one  stood  near  enough  to  see  the  ballot,  except  the  judge,  and  the 
greater  portion  of  them  were  folded,  and  it  was  impossible  for  him  to  tell  how  they 
were  voting. 

17th.  Question.  It  has  been  testified  by  the  said  Lewis  that  he  knows  that  more  than 
270  ballots  were  cast  for  John  M.  Langston  at  the  3d  ward  polls  November  6th,  1888, 
because  that  number  of  names  appear  on  the  four  books  already  mentioned,  kept  by 
himself  and  W.  J.  Smith  and  S.  B.  McE.  Jones.  Please  state  whether  you  know  the 
said  statement  of  Lewis  to  be  true  or  untrue,  and  give  your  reasons  for  your  answer. — 
Ans.  It  is  untrue.  It  was  impossible  for  Lewis,  Smith,  and  Jones  to  tell  how  a  great 
portion  of  the  colored  voters  voted.  No  man  at  3d  ward  precinct  or  set  of  men  could 
have  told  how  any  twenty-five  or  thirty  men  had  voted,  after  they  got  in  line  with 
two  or  three  different  kinds  of  tickets  in  their  hands.  I  saw  that  no  one  interfered 
with  them,  as  I  was  sent  there  for  the  purpose  of  keeping  order  aud  not  let  the  voters 
be  Interfered  with.  I  carried  out  the  order  the  whole  day,  with  the  exception  of 
three-quarters  of  an  hour.     (Record,  965,  966.) 

We  ask  that  this  testimony  be  carefully  read. 

Still  another  witness  contradicts  Lewis.  George  Fayerman,  a  prom- 
inent Eepublican,  a  former  member  of  the  legjislature,  a  canvasser  for 
honorables  James  H.  Piatt,  W.  H.  Stowell,  Joseph  Jorgenseii,  J    D. 

Brady,  and Gaines,  formerly  Republican  members  of  Congress 

fr(;m  this  district. 

11th.  Question.  Are  yon  familiar  with  the  Eepublican  voters  of  3d  ward,  in  which 
yon  live? — Ans.  I  am,  sir. 

12th.  Question.  Please  state  whether  or  not  you  were  present  at  the  3d  ward 
p<dls  on  the  6th  of  November,  1888;  and,  if  so,  how  long  were  you  there  and  in  what 
capacity? — Ans.  I  was  there  nearly  the  whole  day,  not  being  absent  more  than  half 
an  hour  at  any  time.    I  held  the  colored  voters'  book ;  checked  their  names  when  they 


LANGSTON   VS.    VENABLE.  495 

voted.  When  not  otherwise  engaged,  I  wonkl  be  distributing  tickets  or  influencing 
men  to  either  vote  for  Arnold  or  Venable. 

I3th.  Question.  The  said  Matt  N.  Lewis  mentioned  above  has  testified  that  on  the 
6th  of  November,  IStiH,  he  stood  immediately  in  front  of  the  3d  ward  ballot-box  from 
sunrise  until  sunset,  only  leaving  about  thirty  minutes  during  the  day.  Please  state 
whether  or  not  you  know  this  testimony  to  be  true  or  false. — Ans.  Lewis  was  there 
for  about  three-quarters  of  the  day,  and  when  there  he  sat  on  a  box  in  front  of  the 
judges  with  his  back  to  the  voters. 

1  Jth.  Question.  Please  state  whether  or  not  it  is  the  custom  in  3d  ward  among  the 
Republican  voters  to  vote  folded  ol  open  ballots. — Ans.  The  custoin  is  to  vote  folded 
ballots. 

15th.  Question.  Was  the  election  of  the  6th  of  November,  1888,  any  exception  to 
this  rulei? — Ans.  It  was  partially.  A  few  of  the  men  voted  open  ballots,  between  one- 
eighth  and  one-tenth  of  the  colored  voters.  A  great  many  of  the  colored  men  were 
vciy  particular  in  guarding  their  ballots  so  that  no  one  could  see  how  they  voted. 

16th.  Question.  Did  you  see  any  of  the  supporters  of  Langston  exhibit  their  tickets 
to  the  said  Lewis  before  voting? — Ans.  No,  not  one;  they  had  not  the  means  of 
doing  it  from  the  position  that  Lewis  occupied. 

17th.  Question.  If  it  had  been  the  general  rule  for  the  supporters  of  Langston  to 
exhibit  their  ballots  to  Lewis  in  order  that  he  might  record  their  names  in  a  book, 
would  you  or  would  you  not  have  been  cognizant  of  such  a  custom  ? — Ans.  Certainly 
1  tcould  have  hnoicn.  The  only  way  Lewis  could  have  judged  ivould  have  been  iy  the  men 
who  voted;  he  might  have  surmised ;  still  I  kuoic  a  great  many  new  voters  of  the  3d  ward 
who  were  crying  Langston  that  either  voted  for  Arnold  or  Tenable. 

18th.  Question.  Do  you  or  not  knoiv  the  fact  that  at  the  time  it  was  suggested  to  the  Langs* 
ton  I  ally -keepers  that  they  loere  recording  on  their  hooks  as  voting  for  Langston  men  who 
in  reality  had  cast  their  ballots  for  one  of  the  other  candidates  f 

Ans.  Yes,  sir ;  several  colored  men  have  come  to  me  at  the  poll  and  stated  that  they 
were  tired  of  this  nonsense  of  colored  women  and  ministers  interfering  in  politics; 
that  they  were  never  going  to  vote  against  General  Mahone  and  his  candidate ;  there- 
fore they  votH  for  Mr.  Arnold  in  preference  to  Mr.  Langston  ;  and  yet  these  very  men 
were  crying  out  Langston  and  "What's  the  matter  with  Langston,"  in  every  corner 
of  the  streets. 

19th.  Question.  During  the  time  or  times  when  thesaid  Lewis  was  absent  from  the 
3d  ward  polls  he  has  testified  that  one  W.  J.  Smith  and  one  S.  B.  Mac  E.  Jones  as- 
sumed his  position  and  kept  his  tally-books.  Please  state  whether  they  enjoyed  any 
other  or  better  opportunities  for  recording  the  supporters  of  Langston,  and  whether 
ot  not  the  supporters  of  Langston  showed  them  their  ballots  before  handing  them  to 
the  judge. 

Ans.  I  did  see  Wm.  J.  Smith  occupying  the  position  where  Lewis  was,  but  I  never 
saw  Jones.  Smith  had  no  greater  facility  of  seeing  the  ballot  than  Lewis,  and  I 
never  saw  any  one  show  either  Lewis  or  Smith  a  ballot. 

20th.  Question.  There  have  been  filed  in  this  record  as  a  part  of  the  testimony  of  the 
said  Lewis  four  books  purporting  to  be  the  tally-books  wliich  he  kept  on  the  6th 
of  November,  1888,  which  he  kept  at  the  3d  ward  polls,  containing  the  names  of  more 
than  200  voters  whose  ballots  he  swore  were  given  for  John  M.  Langston.  In  an- 
swer to  the  following  question  asked  the  said  Lewis  on  his  direct  examination,  to  wit, 
♦'  When,  and  under  what  circumstances  did  you  particularly  observe  the  ballot  of 
each  colored  voter  before  recording  his  name  in  said  books?"  the  said  Lewis  replied, 
"  I  read  his  ballot  carefully,  and  after  I  had  seen  the  judge  to  whom  he  handed  his  ballot 
deposit  it  in  the  ballot-box,  I  then  placed  his  name  on  my  book."  Please  state  whether 
or  not  this  reply  of  the  said  Lewis  is  true,  and  give  your  reasons. — Ajis.  It  may  be  true 
so  far  as  the  one-eighth  or  one-tenth  of  the  men  who  voted  an  ouen  ticket,  provided  Lewis  teas 
prtsent  and  was  paying  some  attention.  But  with  regard  to  the  others  His  not  true,  for  he 
had  not  the  means  of  knowing  how  they  voted. 

21st.  Question.  From  your  experience  in  such  matters,  is  it  possible  outside  of  the 
polls  to  keep  an  accurate  tally  of  the  votes  cast  for  any  particular  candidate  in  an 
election  conducted  under  the  laws  which  regulated  the  election  of  November  6th, 
1888,  and  give  your  reasons? — Ans.  Not  possible,  except  lour  men  unite  in  concert  in 
keeping  an  account  and  paying  particular  attention  to  the  voters  in  giving  and  depos- 
iting their  tickets.  On  the  6th  of  November  Langston's  friends  had  so  many  ticket- 
holders  and  so  many  men  otherwise  engaged  that  they  were  in  conflict  with  each 
ot  her,  and  some  of  these  ticket-holders,  whilst  pretending  to  be  for  Langston,  were  dis- 
tributing tickets  for  Arnold  ;  the^-efore  no  proper  count  could  be  kept. 

German  H.  Gill,  Federal  supervisor  (Record,  986) : 

12th.  Question.  Were  you  present  after  the  close  of  the  polls  and  during  the  count 
and  canvass  of  the  vote  ? — Ans.  I  was  present  during  the  count  and  canvass  of  the 
Aote,  and  from  the  time  the  polls  closed  I  did  not  leave  until  the  count  and  canvass 


496  LANGSTON    VS.    VENABLE. 

was  finished  or  completed,  and  the  tally-sheets,  &c.,  with  the  ballots  were  placed  in 
the  ballot-box  and  sealed  by  the  judge. 

13th.  Question.  How  did  the  number  of  ballotB  found  in  the  box  correspond  with 
the  n umber  of  names  on  the  poll-books? — Ans.  They  corresponded  exactly.  There 
were  797  names  registered  by  the  clerks,  and  the  number  of  ballots  were  797  found  in 
the  box. 

14th.  Question.  Please  describe  the  manner  in  which  the  ballots  wore  canvassed 
and  counted,  and  say  by  whom  were  they  canvassed  and  counted,  and,  refreshing 
your  memory  from  the  poll-book  aheady  filed,  say  what  was  the  result. 

(Note. — Counsel  for  contestant  now  asked  for  an  adjournment  of  the  taking  of  the 
above  deposition  until  4  p.  m.  of  this  day,  as  he  has  a  pressing  engagement  which  it 
is  impossible  for  him  to  neglect,  especially,  too,  as  there  are  now  onlj'  three  of  Lang- 
ston's  counsel  in  the  city,  and  that  the  other  two  counsel  are  now  engaged  in  taking 
depositions  in  this  contested-election  case  in  other  parts  of  the  city  under  notice  given 
by  the  contestee  through  his  counsel.) 

Ans.  The  ballot-box  was  emptied  by  William  Crichton,  judge,  on  the  table.  I  saw 
that  nothing  was  left  in  the  box.  The  ballots  were  then  counted  by  the  judges, 
William  Crichton,  John  T.  Williams,  Virgiuius  L.  Weddell,  and  myself,  I  claiming 
the  right  as  United  States  supervisor  for  that  precinct  to  count  the  same.  The  num- 
ber of  ballots  taken  from  the  box  were  797.  The  ballots  for  each  candidate  were 
then  separated  and  counted  for  each  candidate.  The  result  was  :  Venable,  518 ;  Ar- 
nold, 105  ;  Langston,  174.  The  ballots  were  separated  and  counted  by  three  judges 
already  mentioned  and  myself.  I  was  present  during  the  entire  count  and  canvass 
of  the  vote. 

15th.  Question.  Did  you  keep  any  record  yourself  during  the  day ;  and  if  yon  did, 
state  in  what  manner  yon  kept  it,  and  how  its  result  accorded  with  the  number  of 
ballots  found  in  the  box  ? — Ans.  I  kept  a  tally  of  the  white  and  colored  vote  during 
the  day  upon  a  patent  tally-sheet,  which  I  received  as  an  advertisement,  the  parties 
wishing  to  sell  these  sheets,  and  having  the  sheet  I  used  it  for  the  purpose  of  keeping 
a  tally  that  day.  My  count  upon  this  sheet  summed  up  5  less  than  the  poll-book, 
which  difference  was  due  to  the  iact  that  I  failed  to  make  the  cross-mark  in  the  tally, 
thereby  beginning  the  next  tally,  losing  one  each  time  I  made  the  mistake. 

16th.  Question.  From  your  experience  in  such  matters,  is  it  i^ossible  outside  of  the 
polls  to  keep  with  accuracy  a  record  of  the  number  of  votes  cast  for  any  particular 
candidate;  and  give  your  reasons? — Ans.  From  my  experience  it  is  impossible  to  tell 
by  any  means  outside  of  the  polls  how  many  votes  are  cast  for  any  particular  candi- 
date or  party.  My  reason  for  so  stating  is  that  I  have  frequently  tried  to  do  so  at 
the  same  polling  place,  having  an  accurate  copy  of  the  registration  book  made  my- 
self while  a  registrar,  and  have  never  yet  been  able  to  tell  at  the  close  of  the  polls 
which  party  or  candidate  had  the  most  ballots  cast  for  them,  or  estimate  how  many 
had  been  cast  for  any  particular  candidate.  I  have  failed  to  come  within  15U  votes 
between  the  two  parties.  Republican  and  Democrat,  and  found  it  impossible  to  tell 
anything  about  the  number  of  ballots  for  any  one  candidate.  The  fact  of  the  ballots, 
as  a  general  thing,  being  folded  by  the  voters,  in  my  opinion,  makes  it  impossible  for 
a  man  outside  of  the  polls  to  say  how  many  ballots  have  been  cast  for  any  particular 
candidate. 

17th.  Question.  Was  the  election  of  the  6th  of  November,  188H,  any  exception  to 
the  general  rule  with  regard  to  the  voting  of  folded  ballots  ? — Ans.  No,  sir. 

Ibth.  Question.  fVas  there  any  fraud  or  sharp  practice  of  any  kind  ji^aciiced  in  the 
countiny,  canvassing,  or  returning  of  the  vote  of  '3d  ward  polls  on  November  6th,  1888? — 
Jns.  I  had  every  opportunity  to  see  and  hear  everything  that  teas  done  or  said  in  the  count 
and  canvass  and  return  of  the  said  vote.  I  saw  nothing  of  fraud  or  sharp  practice.  If  1 
had  seen  any  such  fraud  or  sharp  practice  I  should,  as  United  States  supervisor,  have 
stopjted  it  at  once. 

19th.  Question.  If  there  had  been  any  fraud  at  the  3d  ward  polls,  would  you  not  have 
been  able  to  see  and  discover  it  ? — Ans.  Yes. 

Could  evidence  be  more  direct  f 

This  concludes  the  testimony  taken  as  to  this  precinct.  The  case  of 
the  contestant  stands  upon  the  testimony  of  Lewis  alone  (for  if  it  falls 
Smith's  testimony  must  fall),  which  is  overwhelmingly  rebutted  and 
contradicted  by  no  less  than  four  witnesses. 

We  have,  then,  the  sworn  returns  of  three  judges  and  two  clerks  and 
one  Federal  supervisor  and  the  testimony  of  four  witnesses  on  the  one 
hand  and  the  uncorroborated  and  contradicted  testimony  of  one  witness 
(Lewis)  on  the  other. 

The  majority  of  the  committee  in  their  report  seem  to  regard  the  tes- 
timony of  the  contestant's  witnesses  as  weak,  and  yet  they  treat  it  as 


LANGSTON    VS.    VENABLE.  497 

conclusive  proof  of  fraud,  ballot-box  stuffing,  etc.,  and  declare  that  the 
contestee  has  no  right  to  complain,  ns  he  delayed  the  completion  of  the 
examination  of  these  witnesses  to  such  an  extent  as  to  prevent  the  tak- 
ing of  further  evidence.  In  other  words,  the  majority  of  the  committee 
decide  a  great  and  important  question  upon  the  assumption  that  the 
contestant  might  have  proved  his  case  if  be  had  not  been  interfered  with 
by  the  contestee ;  they  decide  upo^  what  might  have  been  in  the  record, 
not  upon  what  is  in  it.  With  all  due  deference  we  submit  that  this  is 
hardly  in  the  line  of  legal  procedure  and  even-handed  justice. 

But  was  the  contestant  in  fact  prevented  from  taking  other  testimony 
by  the  acts  of  the  contestee?  The  majority  say  that  he  was,  by  reason 
of  the  long  cross  examination  of  his  witnesses.  Well,  when  it  is  re- 
membered that  the  contestant  was  relying  upon  the  testimony  of  these 
witnesses  to  at  least  lay  the  foundation  for  the  rejection  of  a  poll  at 
which  more  than  700  votes  were  cast  and  a  large  plurality  given  to  the 
contestee,  the  exercise  of  common  judgment  would  have  taught  him 
that  their  testimony  would  be  tested  by  the  most  rigid  cross-examination, 
and  if  he  did  not  prepare  for  such  an  emergency  he  has  himself  only  to 
blame.  It  nowhere  appears  in  evidence  that  the  contestant  was  unable 
to  procure  legal  assistance  or  uotarial^service  in  the  takingof  all  the  evi- 
dence he  desired  in  the  forty  days  allowed  by  law,  but  it  appears  that 
he  had  many  attorneys  and  that  much  time  was  unoccupied  by  him, 
which  could  have  been  utilized  if  he  had  been  anxious  to  do  so.  It  is  also 
charged  in  a  letter  written  to  him  by  the  contestee  (Record,  634)  that  he 
was  in  fact  pbsent  from  the  State  of  Virginia  on  other  business  a  large 
portion  of  the  forty  days  allowed  him  for  the  taking  of  testimony,  and 
this  charge  is  not  denied  by  him  in  his  reply  to  said  letter.     ( Kecord,  G36.) 

But  be  all  this  as  it  may,  surely  we  can  never  agree  to  set  a  precedent 
by  which  a  case  can  be  determined  by  what  a  party  might  have  done 
"if  wind  and  tide  had  been  in  his  favor,"  but  which  he  has  not  done. 

The  House  of  Representatives  may  in  a  proper  case  grant  additional 
time  to  take  testimony,  but  it  will  never,  until  all  principles  governing 
judicial  procedure  and  the  hearing  and  determination  of  causes  are  set 
aside  and  utterly  disregarded,  strengthen  and  bolster  up  a  weak  and 
feeble  attempt  to  annul  the  solemn  act  of  election  officials  upon  the 
mere  assertion  of  a  party  that  he  could,  if  he  had  been  favored  with 
more  time,  have  proved  his  case. 

Concluding  as  to  this  precinct,  we  insist  that  the  returns  are  unim- 
peached  and  must  stand. 

DELAY  OF  JUDGES— NOT  ENOUGH  VOTING  PLACES. 

The  contestant  charges  that  many  of  his  voters  were  hindered  from 
voting  by  the  delay  of  the  judges  in  receiving  ballots.  The  majority  of 
the  committee,  on  page  28  of  their  report,  say  that  it  appears  121  of 
Langston's  voters  were  prevented  from  casting  their  ballots  by  the  delay 
of  the  judges  in  Sixth  ward. 

There  is  not  the  slightest  evidence  whatever  in  our  opinion  to  sustain 
this  charge.  At  this  precinct  651  votes  were  cast,  or  about  one  vote 
every  minute.  This  was  rapid  voting  when  it  is  considered  that  the 
registration  books  and  disfranchised  lists  had  to  be  examined.  There 
was  no  delay  by  challenges,  as  there  was  not  a  voter  challenged  during 
the  day.  The  contestant  claims  that  his  voters  were  discriminated 
against,  as  the  judges  alternated  by  receiving  first  the  ballot  of  a  colored 
man  and  then  the  ballot  of  a  white  man  ;  he  thinks  two  colored  voters 
should  have  voted  to  every  white  voter,  and  the  majority  of  the  commit* 
tee  seem  to  agree  with  him. 
H.  Mis.  137 32 


498  LANGSTON   VS.    VENABLE. 

From  this  position  we  dissent.  We  think  a  white  man  has  as  mnch 
right  to  tender  his  ballot  and  have  it  received  as  a  colored  man  and 
vice  versa,  and  that  a  man  because  his  skin  is  white  should  not  be  re- 
quired to  wait  at  the  polls  until  two  other  men  had  deposited  their  bal- 
lots because  tbeir  skin  is  black. 

If  the  voting  facilities  in  the  sixth  ward  were  inadequate,  neither  the 
contestee  nor  his  party  is  responsible,  as  will  appear  from  the  following 
testimony: 

B.  D.  Akers: 

77.  Q.  How  many  voting  precincts  were  there  in  sixth  ward  at  the  time  of  the 
November,  18S6,  election,  and  how  many  had  there  been  prior  to  that  time  t — A.  Only 
one. 

78.  Q.  What  party  was  in  power  in  the  city  council  of  the  city  of  Petersburg  on 
Februaiy  Isl,  18d8T — A.  Republican. 

79.  Q.  Is  it  or  not  a  fact  that  at  that  date  the  Republican  members  of  said  city 
council  were  in  the  majority? — A.  It  is  a  fact. 

80.  Q.  Were  or  not  the  four  members  of  the  said  city  council  from  said  sixth  ward 
all  Republicans  at  that  timet — A.  Yes,  sir. 

81.  Q.  I  tind  from  the  proceedings  of  the  common  council  of  the  city  of  Peters- 
burg, held  February  1st,  18i8,  that  the  following  members  of  that  council  voted  to 
establish  another  voting  place  in  sixth  ward  in  addition  to  the  one  at  which  the 
election  was  held  November  6th,  1888:  Blake,  Enniss,  W.  T.  Hargrave,  Epes  Har- 
grave,  Johns,  Newcomb,  Parham,  Thweatt,  Waite,  and  Goodwyn.  Please  state 
whether  these  thirteen  persons  whose  names  I  have  called  were  then  and  are  now 
Republicans  or  Democrats? — A.  They  were  then  aud  are  now  Republicans. 

82.  Q.  I  fi  id  from  an  examination  of  the  proceedings  of  said  city  council  that  on 
March  20th,  1888,  a  special  meeting  of  said  council  was  hold,  in  pursuance  of  a 
request  therefor  made  by  Epes  Hargrave,  Harrison,  Waite,  and  eight  others,  and 
that  at  that  meeting  Mr.  Enniss,  one  of  the  Republican  members  from  sixth  ward, 
moved  a  suspension  of  the  rules  in  orrler  that  he  might  offer  an  ordinance  to  re- 
peal the  ordinance  passed  February  1st,  1888,  dividing  sixth  ward  into  two  voting 
precincts.  I  lind,  too,  from  the  same  proceedings  that  there  were  present  at  this 
special  meeting,  held  March  20th,  1888,  the  following  members  of  said  council:  E. 
A.  Goc'dwyn,  president,  and  Messrs.  Blake,  Ennis,  Farley,  Gilliam,  W.  T.  Hargrave, 
Epes  Hargrave,  Johns,  Newcomb,  Osborne,  Parham,  Seward,  Thweatt,  Waite,  Wil- 
son, and  Zimmer.  I  find  further  that  the  rules  were  suspended,  and  that  the  ordi- 
nance dividing  sixth  ward  into  two  voting  precincts  was  repealed.  Please  state 
what  party  was,  on  March  the  20th,  1888,  in  the  majority  in  the  city  council  of 
Petersburg,  and  what  were  then  and  what  or  now  the  politics  of  the  members  of 
said  council  whose  names  I  have  last  mentioned  above,  which  names  the  notary  will 
read  over  to  yon. — A.  The  Republicans  were  in  power.  (The  notary  here  read  the 
names:)  E.  A.  Goodwyn,  president,  Republican ;  Blake,  Republican;  Enniss,  Repub- 
lican; Farley,  Republican;  Gilliam,  Democrat;  W.  T.  Hargrave,  Republican;  Epes 
Hargrave,  Republican ;  Johns,  Republican ;  Newcomb,  Republican  ;  Osborne,  Demo- 
crat ;  Parham,  Republican;  Seward,  Democrat;  Thweatt,  Republican;  Waite, 
Republican;  Wilson,  Republican;  and  Zimmer,  Democrat. 

83.  Q.  Then  what  party,  according  to  this  record,  is  responsible  for  the  fact  that 
the  ordinance  passed  Feb'y  the  1st,  1888,  establishing  two  voting  precincts  for  sixth 
ward,  was  repealed  March  the  20th,  1888,  at  a  special  meeting  called  for  that  pur- 
pose, the  Democratic  or  the  Republican  party  in  said  city  council? — A.  The  Repub- 
li<jan. 

84.  Q.  Have  you  examined  a  duly-certified  copy  of  the  said  council  proceedings 
showing  the  fact^s  as  above  set  forth,  aud  if  you  have  in  your  hand  such  a  certified 
coj»y,  will  you  please  hand  it  to  the  notary  to  be  filed  as  an  exhibit  with  this  your 
deposition? 

(Note. — Here  counsel  for  the  contestee  handed  the  witness  the  certified  copy  of 
the  said  proceedings,  which  the  witness  carefully  examined.) 

A.  Yes,  sir,  I  have  examined  it. 

(Note. — And  here  the  witness  handed  the  notary  a  certified  copy  of  said  proceed- 
ing, which  is  marked  "  B  D  A,  Exhibit  A,"  and  asked  that  the  same  be  tiled  as  an 
exhibit  with  this  his  deposition,  which  is  accordingly  done.  Here  the  notary  marked 
the  same  as  above  indicated.) 

(B.  D.  a.)  Exhibit  a. 
State  of  Virgixia: 

At  a  regular  meeting  of  the  common  council  of  the  city  of  Petersburg,  held  in  the 
council  chamber  Feb'y  1st,  1888;  present  Capt.  E.  A.  Goodwyn,  president,  and  Messrs. 
JBagwell,  Blake,  Davis,  Enniss,  Gilliam,  Hargrave,  W.  T.,  Hargrave,  Epps,  Harris, 


LANGSTON  VS  VENABLE.  499 

Jolins,  Newcomb,  Osborne,  Markbam,  Smith,  Seward,  Tbweatt,  Van  Anken,  Wheary, 
and  Wilson. 

The  ordinance,  laid  over  from  the  last  meeting  of  the  conncil,  entitled  "An  ordi- 
nance to  amend  and  re-enact  sec.  7  of  chapter  54,  printed  ordinances  of  the  city  of 
Pelersburgh,"  was  taken  up  and  passed  by  the  following  vote : 

Ayes:  Messrs.  Blake,  Enniss,  Hargrave,  W.  T.,  Hargiave,  Epps,  Harris,  Johns, 
Newcomb,  Parkhani,  Thweatt,  Van  Auken,  Waite,  Wilson,  and  Goodwyn — 13. 

Nays:  Bagwell,  Davis,  Gilliam,  Osborne,  Smith,  Seward,  and  Wheary — 7. 

Ordinance  Ist. — Be  it  ordained  by  the  common  council  of  the  city  of  Petersburg, 
that  section  7  of  chapter  M,  printed  ordinances  of  the  city  of  Petersburg,  be  so 
amended  and  re-enacted  as  to  read  as  follows : 

That  6th  ward  of  the  city  be  divided  into  two  precincts.  Section  7.  That  of  said 
ward  lying  north  of  a  line  beginning  at  the  City  Hospital  and  running  east  to  the 
intersection  of  West  street  and  Lee  avenue;  thence  east  along  the  middle  of  Lee 
avenue  to  Jones  street;  thence  south  along  the  middle  of  Jones  street  to  Cedar; 
thence  east  along  the  center  of  Cedar  street  to  Halifax ;  thence  south  alonsr  the  middle 
of  Halitax  to  Porterville  street ;  thence  east  along  the  middle  of  Porterville  to  Hard- 
ing street,  be  known  as  precinct  No.  1 ;  and  the  voting  place  of  said  precinct  No.  1 
shall  be  at  and  in  house  No.  211  Halifax  street. 

And  that  all  of  said  ward  lying  south  and  west  of  said  line  and  not  included  in 
precinct  No,  1  be  known  as  precinct  No.  2,  and  that  the  voting  place  for  said  precinct 
No.  2  shall  be  at  and  in  the  building  known  as  Mlnetree's  shop,  on  Halifax  street 
near  Melville. 

At  a  special  meeting  of  the  common  conncil  of  the  city  of  Petersburg  held  in  the 
council  chamber  March  20th,  1888,  present,  the  i)resident,  and  Messrs.  Blake,  Enniss, 
Farley,  Gilliam,  Hargrave,  W.  T.,  Hargrave,  Epps,  Harris,  Johns,  Newcomb,  Os- 
borne, Parkham,  Seward,  Thweatt,  Waite,  Wilson,  and  Zimmer. 

The  presid«nt  explained  why  a  special  meeting  of  the  council  was  called  by  read- 
ing the  following: 

Hon.  E.  A.  Goodwyn, 

President  of  the  Council: 
We  respectfully  request  that  you  will  call  a  special  meeting  of  the  common  council, 
say  on  Tuesday  night,  to  consider  some  proposed  amendments  to  the  revised  ordi- 
nances before  they  shall  be  put  in  print. 
Respect., 

E.  Hargrave, 

Harrison  Waite  (and  eight  others). 

Mr.  Ennis  moved  a  suspension  of  the  rules  to  offer  an  ordinance  entitled  "An  ordi- 
nance to  repeal  an  ordinance  dividing  the  6th  ward  into  two  precincts."  Messrs. 
Gilliam  and  Seward  excused.  The  rules  were  suspended  and  the  ordinance  read  and 
adopted. 

Ordinance. — Be  it  ordained  that  sec.  7,  chapter  54  of  the  printed,  be  re-enacted  so  as 
to  repeal  so  much  of  an  ordinance  to  amend  and  re-enact  sec.  7,  chapter  54  of  printed 
ordinances  dividing  6th  ward  into  two  precincts,  passed  by  the  common  council 
Feb'y  1st,  1888,  and  that  the  same  be,  and  is  hereby,  repealed. 

State  of  Virginia, 

City  of  Peteisburg,  to  tcit: 
I,  J.  F.  Mcllwaine,  city  auditor,  and  ex-officio  clerk  of  the  common  council  of  the 
city  of  Petersburg,  in  the  State  aforesaid,  do  certify  that  the  foregoing  is  a  true  tran- 
script from  th«  records  of  the  common  council  of  said  city. 
In  testimony  whereof  I  hereto  set  my  hand  this  16th  day  of  Febrnary,  A.  D.  1889. 

J.  F.  McIlwaine, 
City  Auditor  an<I  ex-officio  Clerk  of  the  Common  Council  of  said  City. 

State  of  Virginia, 

City  of  Petersburg,  to  wit : 

I,  Chas.  F.  Collier,  mayor  of  the  city  of  Petersburg,  in  the  State  aforesaid,  do  cer- 
tify that  J.  F.  Mcllwaine^  who  hath  given  the  preceding  certificate,  is  now,  and  was 
at  the  time  of  giving  the  same,  city  auditor  of  the  said  city,  and  as  such  clerk  of  the 
common  council  of  said  city  and  custodian  of  its  records,  duly  elected  and  qualified ; 
that  his  signature  is  genuine  and  his  attestation  is  in  due  form. 

In  testimony  whereof  I  have  hereto  set  my  hand  and  affixed  the  seal  of  the  said 
city,  this  18th  day  of  February,  1889. 

[seal.]  Charles  F.  Collier, 

Mayor  of  said  City. 


600  LANGSTON   VS.   VENABLB. 

State  of  Virginia, 

City  of  Petersburg,  to  wit : 

I,  J.  F.  Mcllwaine,  city  auditor  of  the  city  aforesaid,  in  the  State  of  Virginia,  do 
certify  that  Cbas.  F.  Collier,  whose  genuine  signature  appears  to  the  foregoing  cer- 
tificate, is  now,  and  was  at  the  time  of  signing  the  same,  mayor  of  said  city,  duly 
elected  and  qualified,  and  authorized  by  law  to  give  said  certificate. 

In  testimony  whereof  I  hereto  set  my  hand  this  18th  day  of  February,  A.  D.  1889. 

J.  F.  Mcll.WAINE, 

City  Auditor  and  ex-officio  Clerk  of  the  Common  Council  of  the  City  of  Petersburg. 

(NoTB. — Counsel  for  the  contestant  objects  to  the  filing  of  this  certified  copy,  since 
tlie  substance  of  same  has  already  been  made  a  matter  of  record  in  question  put  to 
the  witness  by  counsel  for  the  contestee.) 

85.  Q.  Is  it  or  not  true  that  the  20th  day  of  March,  1888,  above  mentioned,  was  but 
about  two  months  prior  to  the  city  election,  in  May,  1888 1 — ^A.  Yes,  sir.  (Record, 
822,  823,  824.) 

It  will  be  observed  that  the  city  council  was  largely  Republican ;  that 
on  the  Ist  day  of  February,  1888,  nine  (all  Republicans,  all  that  were 
l)resent)  voted  to  establish  a  second  precinct  in  the  6tli  ward  ;  that  on 
the  20th  day  of  March,  1888,  on  the  motion  of  a  Republican  member,  the 
ordinance  establishing  this  second  precinct  was  repealed,  and  that  there 
were  present  at  this  meeting  12  Republicans  and  4  Democrats;  that 
this  special  meeting  was  called  at  the  request  of  Harrison  Waite,  chair- 
man of  the  Republican  city  committee,  E.  Hargrave,  another  Republi- 
can, and  eight  other  members  whose  names  are  not  given. 

LEWISTON  PEEOINCT— LUNENBURaH  COUNTY. 

We  come  now  to  the  last  precinct  assailed  by  the  report  of  the 
majority  of  the  committee.    Lewiston,  Luuenburgh  County. 
The  returns  from  this  precinct  gave  : 

Votes. 

Venable 119 

Langston .   48 

Arnold 46 

Total 213 

This  entire  poll  is  rejected  by  the  majority,  and  313  votes  absolutely 
disfranchised,  and  Venable  deprived  of  a  plurality  of  73  votes. 

Here  is  a  summary  of  the  facts : 

The  three  judges — two  Democratic  and  one  Republican — appointed 
by  the  electoral  board  of  the  county,  declined  to  serve,  the  Republican 
on  account  of  ill  health,  one  of  the  Democrats  because  he  desired  to  go 
to  another  precinct  as  a  worker  for  his  party,  and  the  other  because 
being  a  ready  penman  it  was  desired  that  he  should  act  as  a  clerk.  It 
usually  being  difficult  to  get  men  to  act  as  judges,  these  original  ap- 
pointees on  the  day  before  the  election  arranged  for  others  to  take  their 
places — two  Democrats  and  one  Republican — and  on  the  morning  of 
the  election  they  appeared  early  at  the  polls,  took  the  required  oath, 
and  at  sunrise  opened  the  polls  and  conducted  the  election  to  the  close. 

A  Republican  Federal  supervisor  was  appointed  and  acted  until  the 
polls  closed,  and  then  being  sick,  he  went  to  his  home  and  did  not  re- 
turn. When  the  ballots  were  counted  an  excess  of  25  were  found,  and 
one  of  the  judges  was  blindfolded  and  drew  out  13  Venable,  8  Lang- 
ston, and  4  Arnold  ballots.  The  poll  was  held  in  a  jury-room  adjoining 
and  opening  into  the  court-room. 

T.  F.  Robertson,  one  of  the  judges,  testifies  that  the  ballot-box  was 
in  full  view  of  the  voters ;  that  E.  O.  Goodwyn  was  the  judge  who  re- 


LANGSTON    VS.    VENABLE.  501 

ceived  the  ballots  from  the  voters;  that  he  saw  Goodwyii  deposit  every 
ballot  he  received  in  the  ballot-box ;  that  when  the  polls  closed  the 
ballots  were  taken  from  the  box,  divided  amoug  the  caudidates,  and 
counted  ;  that  a  recess  was  taken  at  dinner  time,  the  door  was  locked 
by  Goodwyu,  who  put  the  key  in  his  pocket,  and  they  all  returned  to- 
gether; that  wheu  the  polls  closed,  the  clerks  said  they  were  tired  and 
went  out,  remaining  fifteen  or  twenty  minutes,  when  they  returned  and 
the  canvass  was  commenced  and  concluded ;  that  he  and  Goodwyn 
looked  over  the  tickets  as  they  were  read  by  Bayne,  the  Eepublican 
judge.    (Record,  1095-1098.) 

W.  J.  Bragg,  the  Republican  Federal  supervisor,  testified  that  he  re- 
mained in  the  polling  room  all  the  time  during  the  voting;  that  he 
watched  all  the  proceedings  as  far  as  he  could ;  that  the  election  was 
conducted  fairly  so  far  as  he  knew;  that  the  ballot-box  was  in  full  view 
of  the  voters  and  they  could  see  their  ballots  deposited  in  it;  that  the 
judges  took  a  recess  for  dinner,  locking  the  door  and  taking  the  key 
with  them  ;  that  the  count-room  and  jury-room  are  in  the  second  story 
of  the  court-house  and  are  reached  by  a  stairway  Irom  the  front,  and 
that  during  the  recess  he  was  watching  and  saw  no  one  enter  the  court- 
room ;  that  it  was  20  feet  from  the  ground  and  no  one  could  have  en- 
tered through  a  window  during  the  recess  without  being  detected,  as 
the  court-yard  was  full  of  people.  That  as  he  lived  4  or  5  miles  from 
the  precinct  and  was  sick  he  left  for  home  after  the  polls  closed  and 
took  his  bed.    On  cross-examination : 

If  there  w.is  any  improper  ballots  put  in  the  ballot-box  I  didn't  find  it  ont.  There 
•was  no  fraud  practiced  that  I  know  of.  I  watched  as  well  as  I  could,  and  if  they 
got  in  there  I  didn't  find  it  out. 

He  says  the  jury-room  was  a  suitable  place  for  holding  the  election 
and  no  objection  was  made  to  it.     (Record,  1117-1120.) 
The  majority  of  the  committee  held  : 

(1)  That  the  change  from  the  courtroom  to  the  jury-room  was  a  sus- 
picious circumstance. 

We  do  not  think  so.  The  jury-room  was,  in  our  opinion,  a  more  suit- 
able place  than  the  large  open  court-room. 

(2)  That  the  change  of  judges  was  another  suspicious  circumstance. 
We  do  not  think  so.    One  judge  was  sick,  another  preferred  to  work 

for  his  party  at  another  precinct,  and  the  third  preferred  to  act  as  a  clerk. 

(3)  That  the  retirement  of  the  clerks  and  the  delay  in  admitting  them 
when  they  returned  was  another  suspicious  circumstance. 

We  do  not  think  so.  Robertson,  the  judge,  explains  that  they  retired 
because  they  were  tired,  and  no  doubt  wanted  to  rest  a  little  before  they 
commenced  the  canvass  of  the  vote ;  that  they  were  not  absent  more 
than  fifteen  or  twenty  minutes,  and  the  little  delay  in  admitting  them 
when  they  wrapped  was  because  the  judges  were  engaged  in  separating 
the  ballots. 

(4)  That  the  judges  were  not  appointed  in  accordance  with  the  statute. 
We  agree  with  them  upon  this  point,  but  the  provision  of  the  statute 

is  not  mandatory,  and  these  judges  were  at  least  de facto  oflBcers,  and  the 
voters  should  not  be  made  to  suffer  because  of  a  mere  irregularitys. 

(5)  That  the  excess  of  ballots  in  the  ballot-box  was  a  badge  of  fraud 
which,  together  with  the  above-recited  circumstances,  should  exclude 
the  vote  at  this  precinct. 

From  this  we  most  earnestly  dissent. 

The  mere  fact  that  the  number  of  votes  returned  exceeds  the  number  of  names 
checked  on  the  voting  list  does  not  in  the  absence  of  fraud  or  of  a  change  tu  the  re- 
sult affect  the  validity  of  the  election.     (Paine,  J  599.) 


502 


LANGSTON   VS.   VENABLE. 


These  excessive  ballots  could  not  affect  the  result.  How  they  got 
into  the  box  no  one,  so  far  as  the  record  shows,  can  tell.  Suppose  they 
were  put  there  by  one  of  the  judges.  Should  that  disfranchise  more 
than  liOO  voters! 

There  is  no  evidenc6  that  the  Democratic  vote  at  this  precinct  was 
unusually  large  or  the  Republican  vote  unusually  small.  In  the  draw 
Venable  suffered  more  than  Langston  or  Arnold,  they  losing,  re- 
spectively, 13,  8,  and  4  votes.  Langston's  supporter  and  witness  (J.  W. 
Smith)  testified  that  he  believed  Langston  received  66  votes  (Record, 
814,  question  45) ;  the  return  gave  him  48  votes,  or  18  less  than  his  friend 
and  worker  believed  he  received. 

Would  it  not  be  more  in  consonance  with  justice  to  give  Langston  18 
votes  more  and  deduct  them  proportionately  from  Venable  and  Arnold, 
or  even  take  all  from  Venable,  than  reject  the  entire  returns'?  Would 
not  that  course  be  more  equitable  than  depriving  Venable  of  the  entire 
advantage  he  had  at  this  precinct?    Could  Langston  complain? 

While  adhering  firmly  to  our  position  that  the  vote  at  this  precinct 
should  be  counted  as  returned,  yet  if  it  is  not  to  stand  we  insist  that 
the  contestant  should  not  have  more  than  his  worker  and  witness  claims 
for  him,  or  Venable  made  to  lose  everything. 

So,  giving  Langston  the  benefit  of  all  that  can  be  claimed  for  him, 
the  vote  will  stand  as  follows: 


Venable. 

Langston. 

Vote  as  retarned ...................................... 

.13,298 
69 

12, 657 
141 

Add  vote  at  Poach,  and  Koss.... .......................... 

Deduct  returned  vote,  sixth  ward,  Petersburg 

13,367 
352 

12,798 
139 

Add  reformed  vote,  aizth  ward,  Petersburg 

13,015 
240 

12,659 
377 

Deduct  returned  vote  at  Lewiston ...... ............ ...... 

13,255 
119 

13, 036 

48 

Add  ** reformed"  vote  at  Lewiston...... 

13, 136 
101 

12,988 
66 

13,237 

13,054 

Clear  majority  of  Venable  over  Langston,  183  votes. 


RECAPITULATION  OP  STATEMENTS. 


First.  Adding  vote  at  Poach  and  Ross:  Majority  for  Venable  569 

votes. 

This  we  believe  to  be  in  accordance  with  the  law  and  the  facts. 

Second.  "Readjusting"  the  vote  in  sixth  ward  of  Petersburg,  and 
giving  to  Langston  all  he  claims,  and  to  Venable  the  well-known  Demo- 
cratic vote,  which  according  to  the  testimony  of  Langston's  witnesses 
was  out  in  full  force:  Majority  for  Venable,  219  votes. 

Third.  "Readjusting,"  as  above  stated,  the  vote  in  the  sixth  ward  of 
Petersburg,  and  reforming  the  vote  at  Lewiston,  and  giving  to  Lang- 


LANGSTON    VS.    VENABLE.  503 

ston  all  that  his  worker  and  witness  claimed  for  him  (66  votes),  and  de- 
ducting his  gain  of  18  votes  over  the  returned  vote  for  him  from  Ven- 
able :  Majority  for  Venable,  183  votes. 

Having  couceded  to  the  contestant  far  more  than  precedents,  law,  or 
sound  policy  would  allow,  and  giving  to  him  everything  which  his 
friends  claim  for  him,  except  in  the  third  ward  of  Petersburg,  it  will  be 
seen  that  the  contestee  has  a  clear,  and,  it  appears  to  us,  incontestable 
majority  of  183  votes. 

As  we  have  indicated,  the  majority  of  the  committee  have  arrived  at 
a  conclusion  entirely  different,  but  we  submit  most  respectfully  that 
they  have  in  every  instance  disregarded  without  reason  the  testimony 
of  contestee's  witnesses,  and  acted  upon  presumi)tions,  not  facts,  and 
strengthened  weak  points  in  the  coutestant's  case  by  drawing  upon 
their  imaginations  as  to  what  might  have  been  proved  if  the  contestant 
had  been  more  active  and  energetic. 

We  submit  the  following  resolutions  in  the  stead  of  those  offered  by 
the  major  ty: 

Resolved,,  That  John  M.  Langston  was  not  elected  a  Representative 
in  the  Fifty-first  ('ongress  from  the  Fourth  Congressional  district  of 
Virginia  and  is  not  entitled  to  a  seat  therein. 

Resolved,  That  Edward  0.  Venable  was  duly  elected  a  Representative 
in  the  Fifty-first  Congress  from  the  Fourtli  Congressional  district  of 
Virginia  and  is  entitled  to  retain  the  seat  he  holds. 

Chas.  T.  O'Ferrall, 
Chas.  F.  Crisp, 
L.  W.  Moore, 
E.  P.  C.  Wilson, 
Levi  Maish, 
Jos.  H.  Outhwaite. 


THOMAS  E.  MILLER  vs.  WM.  ELLIOTT. 

SEVENTH  SOUTH  CAROLINA. 


Contestant  charged  that  by  the  statutes  of  South  Carolina  and  the 
partisan  manner  of  executing  them,  many  voters  possessing  all  the  con- 
stitutional qualifications  for  voting  were  prevented  from  registering 
and  refused  the  right  to  vote.  He  also  charged  that  the  judges  of  elec- 
tion in  a  number  of  precincts  repeatedly  shifted  the  ballot  boxes  for  the 
purpose  of  deceiving  the  voters,  and  causing  them  to  deposit  their  bal- 
lots in  the  wrong  boxes,  and  that  by  this  proceeding,  as  well  as  by  bal- 
lot-box stuffing  and  other  frauds,  he  was  deprived  of  a  large  number  of 
votes  honestly  cast  for  him  by  legal  voters. 

The  committee  find  (1)  that  the  registration  and  election  laws  of 
South  Carolina  are  unconstitutional,  and  their  execution  partisan  and 
illegal;  (2)  that  the  shifting  of  the  ballot  boxes  being  for  the  purpose 
of  deception  and  hence  unlawful,  the  votes  lost  by  it  should  be  restored ; 
and  (3)  that  where  the  ballot  boxes  were  stufted  the  returns  should  be 
rejected  and  the  vote  counted  as  proved  to  have  been  cast. 

The  minority  find  (1)  that  the  registration  and  election  laws  of  the 
State  are  constitutional  and  reasonable,  and  their  execution  fair;  (2) 
that  the  shifting  of  the  ballot  boxes  was  a  proper  proceeding,  and  the 
votes  found  in  the  wrong  boxes  could  not  be  counted  even  if  the  evi- 
dence showed  satisfactorily  their  number  and  for  whom  they  were  castj 
and  (3)  that  there  being  no  evidence  to  show  by  whom  the  boxes  were 
stufted,  and  the  excess  of  ballots  having  been  "  purged  "by  the  method 
provided  for  in  the  statutes  of  South  Carolina,  the  returns  should  be 
allowed  to  stand.     (See  minority  report,  p.  533.) 

The  resolutions  presented  by  the  committee  were  adopted  by  the 
House  September  23, 1890,  by  a  vote  of  157  to  1  (on  division,  the  Speaker 
"  counting  a  quorum  "),  and  Mr.  Miller  was  sworn  in  the  next  day.  The 
case  was  not  debated.     (See  Record,  p.  10339.) 

(1)  Eegistration  law  unconstitutional. 

The  registration  law  of  South  Carolina  is  unconstitutional,  because  it 
is  not  a  reasonable  regulation  of  the  right  to  vote,  but  is,  under  the  pre- 
tense of  regulation,  an  abridgment,  subversion,  and  restraint  of  that 
right.  Its  unreasonable  or  restrictive  features  are  (1)  that  it  does 
not  provide  sufficient  facilities  for  registration,  and  leaves  to  the  regis- 
tering officer  a  dangerous  discretion ;  (2)  that  it  attaches  the  penalty  of 
permanent  disfranchisement  for  failing  for  any  cause  to  register  for  the 

505 


50G  MILLER    VS.    ELLIOTT. 

first  election  at  which  the  citizen  would  be  entitled  to  vote  if  registered  j 
(3)  that  it  affixes  a  like  penalty  for  parting  with  or  destroying  a  regis- 
tration certificate ;  (4)  that  all  applications  for  transfer  or  renewal  of  cer- 
tificates raust  be  made  at  the  county  seat  of  the  county  where  the  origi- 
nal certificate  was  issued ;  (5)  that  when  the  board  of  appeals  has  de- 
cided against  an  applicant  for  registration,  he  may  appeal,  but  must 
give  noticein  writing  within  five  days,  and  commence  proceedings  in  court 
within  ten  days  thereafter,  or  be  forever  debarred  from  voting.  This 
is  a  special  remedy  with  a  fifteen-days  statute  of  limitations ;  (6)  that 
the  supervisor  is  given  arbitrary  power  to  strike  names  from  the  regis- 
try list  without  posting  the  names  and  without  notice  to  anybody. 

(2)  Election  law  unconstitutional. 

The  provision  of  the  election  law  of  South  Carolina  which  provides 
for  several  ballot  boxes,  distinguished  from  each  other  only  by  the 
labels,  and  that  no  ticket  found  in  the  wrong  box  shall  be  counted,  is 
practically  an  educational  test,  and  is  hence  in  direct  violation  of  the 
constitution  of  the  State. 

(3)  Votes.     Rejected. 

Persons  otherwise  qualified  as  voters  who  attempted  to  get  certifi- 
cates of  registration  and  were  prevented  by  the  action  of  the  register 
ing  officers,  were  legal  voters,  and  if  they  tendered  their  votes  to  the 
judges  of  election  and  were  refused,  their  votes  could  be  counted  on  a 
contest. 

(4)  Shifting  of  ballot  boxes. 

The  shifting  of  ballot  boxes  for  the  purpose  of  deceiving  voters  and 
enforcing  on  them  an  educational  test  not  permitted  by  the  constitu- 
tion of  the  State,  is  an  unlawful  and  fraudulent  proceeding. 

"  An  act  may  not  expressly  be  forbidden  by  law,  but  if  it  is  done  with 
an.  unlawful  purpose,  and  succeeds  in  accomplishing  that  purpose,  the 
act  is  thereby  made  unlawful."  Under  such  circumstances  the  votes 
found  in  the  wrong  boxes  should  be  counted. 

"  It  is  no  answer  to  say  that  the  counting  of  such  ballots  is  prohibited 
by  statute  (even  admitting  that  the  statute  is  a  reasonable  regulation, 
which,  under  the  peculiar  circumstances  in  South  Carolina,  we  do  not), 
when  the  mistaken  deposit  has  resulted  from  the  active  deception  of 
the  managers.  It  is  a  crime  at  common  law  to  enter  into  a  conspiracy 
to  commit  any  offense  against  the  purity  and  fairness  of  a  public  elec- 
tion.   (Paine  on  Elections,  section  496,  and  authorities  cited.)" 

(5)  Ballot-box  stuffing. 

Where  ballot  boxes  are  proved  to  have  been  stuffed,  the  returns  are 
rejected  and  no  votes  counted  except  those  proved  or  conceded  aside 
from  the  returns.  This  in  spite  of  the  fact  that  the  excess  of  votes  had 
been  "  purged"  as  provided  for  in  the  statutes  of  South  Carolina,  for 
"  such  method  of  disposing  of  extra  ballots  is  provided  for  mistakes, 
and  not  for  frauds." 


KEPOHT. 


June  20,  1890. — Mr.  Eowell,  from  the  Committee  on  Elections,  sub- 
mitted the  followiug  report: 

The  Committee  on  Elections  have  had  under  consideration  the  con- 
tested election  case  of  Thomas  E.  Miller  vs.  William  Elliott,  from  the 
Seventh  Congressional  district  of  South  Carolina,  and  submit  the  fol- 
io <ving  report: 

At  the  election  held  November  6, 1888,  in  the  Seventh  Congressional 
district  of  South  Carolina,  for  Representative  in  Congress,  Thomas  E. 
Miller  was  the  candidate  of  the  Kepublican  party  and  William  Elliott 
of  the  Democratic  party.  The  certified  returns  gave  Elliott  a  majority 
over  Miller  of  1,355,  as  shown  by  the  following  table. 

Election  returns,  Seventh  Congressional  district. 


Counties. 

William 
Elliott. 

Thomas  E. 
Miller. 

Bobert 
Simmoas. 

Beaafort 

898 

1,753 

45 

652 

821 

987 

367 

1,782 

1,053 

2,056 
l,5i7 
143 
210 
957 
310 
222 
933 
624 

54 

Kicbland       

3 

.  18 

Williamsbnrg 

8,358 

7.003 

74 

The  notice  of  contest,  and  answer  thereto,  cover  all  matters  consid- 
ered by  the  committee. 

Before  proceeding  to  examine  the  charges  in  detail,  and  the  evidence 
introduced  in  regard  to  them,  the  committee  deems  it  proper  to  call 
attention  to  some  of  the  general  features  of  the  case. 

In  redistricting  the  State  after  the  census  of  1880,  the  legislature  of 
South  Carolina  utterly  ignored  the  Federal  Statutes.  The  territory  of 
the  Seventh  district  is  in  no  sense  contiguous.  It  is  well  described  in 
contestant's  brief. 

The  new  district — the  Seventh  Congressional  district — was  created  without  regard 
to  shape,  size,  or  contiguity  of  territory  as  required  by  law.  To  secure  the  appear- 
ance of  the  latter,  it  is  necessary  to  regard  a  portion  of  the  Atlantic  Ocean  as  dry 
land.  It  extends  from  the  capital  of  the  State  to  Savannah,  Ga.,  a  distance  of  over 
200  miles,  and  consists  of  the  Republican  portions  of  live  of  the  original  districts.  It 
contains  only  three  entire  counties,  to  which  is  added  an  irregular  patchwork  of 
portions  of  six  (6)  counties,  and  in  it  is  massed  the  population  of  every  large  colored 
or  Republican  settlement  and  town  on  the  sea-coast  or  intarior,  and  from  it  has  been 
excluded  nearly  every  white  or  Democratic  settlement.    In  one  place  the  district  is 

507 


508 


MILLER   VS.   ELLIOTT. 


mn  into  the  ocean  for  the  purpose  of  exclading  the  Democratic  precincts  of  McClel- 
lauville  and  Mount  Pleasant,  in  Berkeley  County,  and  Sullivan's  Island,  or  Moultrie- 
ville  precinct,  in  Charleston  County. 

In  color  of  population  it  was  made  as  black  as  the  deeds  of  the  election  officers,  who 
have  violated  every  law  and  principle  of  justice  to  return  contestee  to  Congress. 

But  this  monstrosity  can  not  thoroughly  be  understood  without  an 
examination  of  a  map  of  the  district.  An  examination  of  the  descrip- 
tion of  the  district  in  the  Congressional  Directory  will  show  that  its 
contiguity  is  secured  by  putting  into  it  the  sea  beach  of  Charleston 
County,  a  strip  of  sand  a  lew  feet  wide  and  many  miles  long,  covered 
half  of  every  day  by  the  waters  of  the  Atlantic  Ocean  and  incapable  of 
human  habitation.  All  the  habitable  main-laud  of  this  county  is  in 
another  district. 

The  following  table  shows  the  population  of  the  district  according  to 
the  census  of  1880 : 

SEVENTH  C0KGRE8SIONAL  DISTRICT. 

Fopulmtion  and  number  of  males  of  voting  age  classified  iy  race  according  to  census  of 

1880. 


TotaL 


"White. 


Gol«red. 


Hales  21  years  of 
age  and  over. 


White.     Colored. 


The  district 

Georgetown  County 

Beaulort  County 

Sumter  Connty 

Orangeburg  County 

Township  of  Amelia 

Township  of  Goodby's 

Township  of  Lyons 

Township  of  Pine  Grove 

Township  of  Poplar 

Township  of  Providence 

Township  of  Vance's 

Williamsburg  County 

Township  of  Anderson 

Township  of  Hope 

Township  of  Indian 

Township  of  King's,  except  the  town  of  Kings- 
tree. 

Township  of  Laws 

Township  of  Mingo 

Township  of  Penn 

Township  of  Ridge 

Townsliip  of  Sutton's 

Township  of  Turkey 

Colleton  Connty 

Township  of  Collin's 

Township  of  Adam's  Bun 

Township  of  Glover 

Township  of  Fraser 

Townsh ip  of  Lowndes 

Township  of  Blake 

Charleston  County,  except  those  portioas  in  First 

district. 
Biohland  County : 

Lower  Township 


187,536 


19, 613 

30,176 

37,037 

13,634 

3,664 

1,490 

2,428 

1,994 

1,512 

1,260 

1,286 

15,681 

733 

2,326 

1,914 

2,458 

1,295 
1,371 
1,481 
2,001 
779 
1,323 

12,961 
1,431 
4,409 
1,337 
1,708 
1,655 
2,521 

49,553 


8,881 


31.520 


166,016 


3,466 
2,442 
9,979 


629 
433 
419 
393 
446 
387 
206 


465 
615 
317 
400 

208 
362 
237 
410 
232 
310 


390 

537 

179 

160 

78 

49 

6,654 


917 


16, 147 
27,734 
27,058 


3,035 
1,057 
2,009 
1,601 
1,066 
873 
1,080 


268 
1,711 
1,597 
2,058 

1,087 
1,009 
1,244 
1,591 
647 
1,013 


1,041 
3,872 
1,158 
1,548 
1,497 
2,472 
42,699 


7,064 


7,685 


852 

693 

2,273 


169 

95 
103 

89 
110 

83 

47 


104 

128 

75 

94 

60 
89 
58 
101 
46 
58 


154 
45 
46 

27 

28 

1,735 


262 


32,893 


8,449 
6,127 
4,080 


609 
199 
369 
323 
223 
150 
191 


46 
302 
271 
358 

19S 
177 
234 
249 
92 
182 


271 
871 
242 
884 
363 
574 
9,817 


1,642 


It  will  be  seen  that  the  colored  men  of  voting  age  in  this  district  out- 
number the  whites  by  more  than  25,000.  It  is  undoubtedly  a  misfor- 
une,  but  it  is  none  the  less  true,  that  political  parties  in  this  district  are 
divided  on  race  lines.  The  colored  men  as  a  rule  are  Eepublicans,  and 
the  white  men  are  Democrats.  That  this  is  true  is  nowhere  seriously 
questioned  in  the  record  in  this  case.  It  is  therefore  safe  to  say,  unless 
the  mass  of  colored  voters  have  ceased  to  take  an  interest  in  political 
matters,  that  with  laws  bearing  equally  on  white  and  black,  and  with 


MILLER    VS.    ELLIOTT.  509 

auytbing-  like  a  fair  election,  the  Republicaus  of  the  Seventh  district 
would  poll  four  times  as  many  votes  as  the  Democrats,  and  would  have 
anywhere  from  15,000  to  20,000  majority. 

The  history  of  the  district  as  it  has  come  before  former  Congresses, 
and  as  it  is  presented  in  this  record,  precludes  the  belief  that  its  col- 
ored men  have  to  any  considerable  extent  ceased  to  be  interested  in 
elections,  especially  Presidential  and  Congressional  elections.  On  the 
contrary,  the  colored  Republicans  have  at  all  times  kept  up  their  party 
organization  and  have  never  failed  to  make  a  determined  effort  to 
secure  a  Republican  Representative  in  Congress  from  the  Seventh  dis- 
trict. 

The  present  election  and  registration  law  of  South  Carolina  was  en- 
acted by  the  legislature  of  that  State  in  1881.  In  the  brief  of  contest- 
ant that  law  is  characterized  in  the  following  vigorous  language: 

III  1881  the  electiou  and  registration  law  of  South  Carolina,  the  twin  companion 
of  tbo  geiryniaudeiing  already  described,  was  enacted  by  the  legislature.  It  was 
tli'3  high- water  mark  of  political  ingenuity  coupled  with  rascality,  and  merits  its 
appeUation,  "Fraud  made  easy  and  safe."  It  is  perfect  in  being  entirely  fair  on  its 
face,  and  sufficiently  elastic  to  be  susceptible  to  any  construction  in  its  enforcements, 
or  to  permit  any  species  of  fraud  to  be  committed  without  a  violation  of  any  of  its 
provisions.  It  is  particularly  remarkable  in  zealously  guarding  with  severe  penal- 
ties (he  transmission' of  the  fraudulent  results  obtained  by  the  local  boards,  while 
the  neglect  that  fimounts  to  fraud  and  offenses  against  political  rights  are  not  even 
made  a  simple  misdemeanor. 

As  we  call  attention  to  some  of  the  salient  features  of  the  law,  it  will 
be  seen  that  this  language  is  by  no  means  too  emphatic.  That  this  law 
was  enactea  for  the  deliberate  purpose  of  indirectly  disfranchising,  so 
far  as  possible,  the  colored  voters  of  the  State  admits  of  no  serious 
question.  We  give  here  so  much  of  the  election  and  registration  law  of 
South  Carolina  as  is  necessary  to  illustrate  our  views. 

The  constitution  of  the  State  prescribes  the  qualifications  of  voters. 
They  must  be  male  citizens  of  the  United  States,  twenty  one  years  of 
age,  residents  of  the  State  one  year  and  of  the  county  sixty  days,  not 
inmates  of  almshouses  or  prisons,  and  not  of  unsound  mind.  Persons 
convicted  of  treason,  murder,  robbery,  or  dueling  are  disfranchised,  and 
the  legislature  is  expressly  prohibited  from  disfranchising  any  one  else. 

The  first  section  of  the  registration  act  defines  the  qualifications  for 
voting  as  in  the  constitution,  except  that  it  adds  a  new  and  enlarged 
meaning  to  the  term  robbery. 

The  second  section  provides  that  no  person  shall  be  allowed  to  vote 
unless  registered  in  the  manner  provided  in  the  act. 

The  third  section  provides  for  the  appointment,  by  the  governor  (by 
and  with  the  advice  and  consent  of  the  senate),  of  a  supervisor  of  reg- 
istration for  each  county  on  or  before  the  1st  day  of  March  following 
the  passage  of  the  act,  and  every  two  years  thereafter;  also  for  the  ap- 
pointment of  two  assistant  supervisors  to  act  with  the  supervisor  as  a 
board  of  appeals  in  case  of  refusal  by  the  supervisor  to  register  any 
applicant. 

Section  4  provides  for  registration  books,  two  for  each  precinct. 

Sec.  5.  After  the  approval  of  this  act  the  supervisor  of  registration,  in  the  months 
of  May  and  June  next,  shall  make  a  full  and  complete  registration  of  all  qualified 
voters,  in  the  following  manner:  He  shall  give  three  weeks'  notice  of  the  times  and 
places  of  registration,  by  advertising  in  one  or  more  county  papers,  or  by  posting  in 
a  public  place  in  each  voting  preciont  where  no  paper  is  published  in  the  county. 
The  time  for  resistration  shall  not  be  less  than  one  nor  more  than  three  days  at  each 
registration  precinct.  Immediately  after  closing  the  registration  at  the  precinct  he 
shall  open  his  books  at  the  county  seat  to  correct  errors  in  registration  and  to  register 
Buch  electors  as  failed  to  register  at  their  respective  precincts,  and  who  shall  then  and 


510  MILLER   VS.    ELLIOTT. 

there  present  themsolves  for  that  purpose,  entering  the  names  of  such  voters  in  his 
book  for  their  proper  precincts.  At  the  conclusion  of  the  registration  hereinbefore 
provided  for  the  supervisor  of  registration  shall  revise  the  list,  and  in  case  it  be  made 
to  appear  to  his  satisfaction  that  there  is  a  cxualilied  voter  iu  a  precinct  who  has 
failed  to  register,  he  may,  upon  such  evidence  as  he  may  think  necessary  in  his  dis- 
cretion, permit  the  name  of  such  voter  to  be  placed  on  said  list  and  issue  a  certificate 
therefor.  That  for  the  purpose  of  registration  each  township  as  now  laid  out  and 
defined  be,  and  is  hereby,  declared  a  registration  precinct,  and  iu  those  counties  in 
which  there  are  no  such  townships  that  the  parish,  as  formerly  known  and  defined, 
bo,  and  is  hereby,  declared  such  precinct,  and  in  the  cities  of  Columbia  and  Charles- 
ton each  ward  shall  be  a  registration  precinct. 

Sec.  G.  When  the  said  registration  shall  have  been  completed,  the  books  shall  be 
closed  and  not  reopened  for  registration,  except  for  the  purposes  and  as  hereinafter 
mentioned,  until  after  the  next  general  election  for  State  officers.  After  the  said  next 
general  election,  the  said  books  shall  be  reopened  for  registration  of  such  persons  as 
shall  thereafter  become  entitled  to  register  on  the  first  Monday  in  each  month,  to  and 
until  the  first  Monday  of  July,  inclusive,  preceding  the  following  general  election, 
upon  which  last-named  day  the  same  shall  be  closed  and  not  reopened  for  registra- 
tion until  aft«r  the  said  general  election ;  and  ever  after  the  said  book  sLall  be  opened 
for  registration  of  such  electors,  on  the  daj'S  above  mentioned,  until  the  first  day  of 
July  preceding  a  general  election,  when  the  same  shall  be  closed  as  aforesaid  until 
the  said  general  election  shall  have  taken  place. 

Sec.  7.  Each  elector  in  the  State  shall  be  required,  at  the  time  advertised  for  his 
precinct  as  hereinbefore  provided,  to  appear  before  the  supervisor  of  registration,  at 
the  place  advertised,  and  make  oath  before  the  said  supervisor,  which  oath  the  said 
supervisor  is  hereby  authorized  and  required  to  administer,  that  the  facts  then  and 
there  to  be  stated  by  him  as  to  his  name,  age,  occupation,  and  place  of  residence, 
and  duration  of  residence  in  the  county  and  State  are  true,  and  thereupon  the  said 
8Ui)ervisor  shall  enter  the  name,  age,  occupation,  and  place  of  residence  of  the  elector 
in  the  appropriate  column  in  his  registration  book.  Ho  shall  make  and  keep  a  list 
of  the  contested  applications  for  registration  which  he  rejects,  and  report  the  same 
for  hearing  before  the  assistant  supervisors  as  hereinbefore  required. 

Skc.  8.  The  supervisor  of  registration  shall  determine  as  to  the  legal  qualifica- 
tions of  any  applicantfor  registration  by  summary  process,  requiring  oath,  evidence, 
or  both,  if  he  deem  proper,  subject  to  revision  by  the  assistant  supervisors  and  himself 
in  all  cases  where  he  has  refused  to  register  an  applicant.  From  the  decision  of  the 
supervisors  of  registration  any  applicant  who  is  rejected  shall  have  the  right  to  a 
review  thereof  by  the  circuit  court,  provided  he  give  notice  in  writing  to  the  super- 
visor of  his  application  for  such  review,  and  the  grounds  thereof,  within  five  days 
from  the  date  *  f  his  rejection,  and  commence  his  proceedings  within  ten  days  irom 
the  service  of  said  notice. 

Section  9  provides  for  the  registration  of  persons  coming  of  age. 

Section  10  provides  for  giving  a  certificate  of  registration  to  each  reg- 
istered voter. 

Section  11  provides  for  the  renewal  of  certificates  when  worn  or  de- 
faced, and,  as  amended,  provides  for  renewal  of  lost  certificates,  but 
the  applicant  is  obliged  to  make  oath  to  the  circumstances  attending 
the  loss,  and  "that  he  has  not  sold,  bartered,  or  parted  with  the  same 
for  any  pecuniary,  valuable,  or  other  consideration,  and  has  not  willfully 
destroyed  the  same,"  and  the  supervisor  is  authorized  to  require  siush 
evidence  as  he  deems  necessary  as  to  the  loss. 

His  decision  is  subject  to  review  by  the  board  of  appeals,  when  a  re- 
newal certificate  has  been  rejected,  and  their  action  is  subject  to  review 
by  the  circuit  court  if  notice  is  given  within  five  days  and  proceedings 
commenced  within  ten  days  thereafter. 

Sections  12,  13,  14,  and  15  provide  for  the  surrender  of  the  old  and 
the  issue  of  new  registration  certificates  whenever  a  voter  changes  his 
residence,  either  within  the  precinct  or  to  another  precinct  or  county. 
Any  one  so  changing  his  residence  without  a  transfer  certificate,  is  de- 
barred from  the  privilege  of  voting. 

Sec.  16.  The  supervisor  of  registration  shall,  immediately  preceding  each  elec- 
tion, revise  the  registration  of  electors  and  mark  off"  the  names  of  such  electors  as 
have  died  and  such  as  have  removed  from  one  residence,  precinct,  parish,  ward,  ov 
county,  to  another,  without  notifying  hiu"  ^tud  obtaining  a  certificate  of  transfer  ad 
liereinbefore  provided. 


MILLER    VS.    ELLIOTT.  511 

Sections  17  and  18  provide  for  furnishing  the  managers  of  election 
with  copies  ot  the  registration  boots,  and  for  the  pay  ot  supervisors. 

It  will  be  seen  that  under  this  act  a  complete  precinct  registration  of 
all  qualified  voters  who  should  apply  was  provided  for,  to  be  made  in 
the  months  ol  May  and  June,  1882 ;  the  supervisors  visiting  each  town- 
ship for  that  purpose,  after  due  notice,  and  remaining  not  less  than  one 
nor  more  than  three  days.  In  that  time  he  was  requin  d  to  administer 
oaths  to  all  applicants,  requiriiig  a  statement  of  age,  residence,  occupa- 
tion, length  oi  lesidence  in  county  and  State,  and  to  take  such  other  evi- 
dence as  he  deemed  fit;  to  make  a  record  of  these  items,  and  to  issue  to 
each  registered  voter  a  certificate  containing  the  same  statement  re- 
quired to  be  recorded.  In  many  of  the  townships  of  the  State  this 
was  an  impossibility  within  the  limited  time. 

Immediately  on  dosing  the  precinct  registration  the  supervisor  was 
required  to  open  his  books  at  the  county  seat,  to  correct  errors  and 
register  such  voters  as  had  failed  to  register  at  the  precinct  registra- 
tion. Having  concluded  his  registration  he  is  required  to  revise  his 
Wsts,  und  may,  in  Ms  discretion,  permit  a  registration  if  any  qualified 
voter  has  failed  to  register.  Having  completed  his  revision  the  books 
must  be  closed  and  not  then^alter  opened  for  registration  until  after  the 
next  general  election,  and  then  only  for  those  who  have  become  entitled 
to  registration  since  the  close  of  the  first  general  registration.  After 
each  general  election,  the  books  are  to  be  opened  on  the  first  Monday 
in  each  month  up  to  and  including  the  first  Monday  in  July  next  pre- 
ceding any  general  election,  but  only  for  the  registration  of  those  who 
have  become  entitled  to  register  since  the  last  closing  of  the  books. 

Under  the  letter  of  this  act,  any  qualified  elector  who  failed  to  regis- 
ter at  the  first  general  registration  is  (brever  thereafter  debarred 
from  legistering  and  from  voting.  Any  one  subsequently  becoming  en- 
titled to  register  and  failing  to  do  so  before  the  closing  of  the  books  in 
July  preceding  the  general  election  at  which  he  would  first  be  entitled 
to  vote  is  forever  thereatter  dislranchised.  A  minor  failing  to  register 
belore  the  first  general  election  following  his  becoming  of  voting  age 
is  thereafter  disfranchised.  Such  is  the  letter  of  the  law,  and  such,  we 
are  informed,  is  the  universal  practice  of  registering  officers.  We  quote 
the  testimony  of  one  of  them : 

James  S.  Polk,  being  duly  sworn,  deposes  and  says  (p.  345): 

Question.  What  official  position  do  you  hold  in  Sumter  County  ? — Answer.  Super- 
visor of  registration. 

Question.  How  long  have  you  held  that  position  ? — Answer.  Two  years  last  Octo- 
ber. 

Question.  It  has  been  testified  by  several  witnesses  for  the  contestant  that  you  re- 
fused upon  proper  demand  to  register  duly  qualified  Eepublican  voters;  wassuch  the 
fact  ? — Auswer.  It  was  not ;  I  never  did. 

Question.  What  is  the  provisiou  of  the  registration  law  in  regard  to  such  persons 
as  were  refused  registration  ? — Answer.  The  law  provides  that  a  man  must  be  regis- 
tered for  the  election  preceding  which  he  becomes  twenty-one  years  of  age ;  if  from 
neglect  or  any  cause  he  fails  to  register  then,  then  lie  is  debarred  from  registering 
afterwards  by  the  terms  of  the  law. 

E.  H.  Kichardson  (p.  26)  says : 

Q.  Do  you  know  the  supervisor  of  registration  of  this  county  f — A.  I  do. 

Q.  Is  he  a  Democrat  or  a  Kepublican  ? — A.  A  Democrat. 

Q.  Do  yon  know  that  he  refused  upon  proper  demand  to  register  Republican  voters 
belore  the  last  election  ? — A.  Persons  who  were  of  age  at  the  time  the  general  regis- 
tration laws  were  passed  he  refused  to  register,  on  the  ground  that  they  had  neglected 
their  former  chance  of  being  registered  in  their  time. 

Any  one  parting  with  his  certificate  of  registration  for  any  consider- 
.ation,  or  wiUlully  destroying  it,  becomes  thereby  forever  disfranchised, 


512  MILLEE   VS.    ELLIOTT. 

and  yet  he  has  committed  neither  treason,  murder,  robbery,  nor  duel- 
lug,  nor,  indeed,  has  he  committed  any  ofleuse  made  a  crime  by  the 
laws  of  the  State.  That  the>se  i)rovisions  of  the  registration  statutes 
are  unconstitutional  and  void  can  not  be  seriously  questioned.  They 
attach  the  penalty  of  permanent  disfranchisement  for  failing  for  any 
cause  to  register  for  the  first  election  at  which  the  citizen  would  be 
entitled  to  vote  if  registered.  They  affix  a  like  penalty  for  parting 
with  or  destroying  a  registration  certificate. 

But  they  give  such  latitude  to  the  supervisor  of  registration  as  will 
enable  him  to  take  good  care  that  none  of  his  political  friends  shall  suf- 
fer the  penalty.  Alter  the  first  general  registration,  all  future  regis- 
trations and  changes  of  registration  must  be  made  at  the  county  seat; 
and  all  applications  for  transfer  certificates  must  be  made  at  the  county 
seat  of  the  county  where  former  registration  was  had,  although  th^ 
voter  may  in  the  mean  time  have  moved  to  the  opposite  end  of  the 
State.  All  applications  for  the  renewal  of  worn  or  lost  certificates  must 
in  like  manner  be  made  at  the  county  seat  of  the  county  where  the  cer- 
tificate was  issued;  and,  at  the  will  of  the  supervisor,  such  evidence  of 
the  circumstances  of  loss  as  he  may  require  must  be  produced. 

When  the  board  of  appeals  has  decided  against  an  applicant  for  reg- 
istration, he  may  appeal,  but  must  give  notice  in  writing  within  five 
days,  and  commence  proceedings  in  court  within  ten  days  thereafter, 
or  be  forever  debarred  from  voting.  A  special  remedy  with  a  fifteen- 
days  statute  of  limitations ! 

Under  the  name  of  a  registration  law,  these  burdensome  and  anrea^ 
sonable,  and,  therefore,  unlawful  barriers  have  been  erected,  to  ex- 
clude from  the  polls  a  large  body  of  citizens. 

In  States  whose  constitutions  do  not  provide,  nor  authorize  their  legislatures  to 
l)rovide,  that  persons  shall  not  vote  unless  registered  in  a  prescribed  mode,  the  ques- 
tion whether  a  legislative  provision  to  that  effect  is  or  is  not  of  constiiutional 
validity  always  turns  upon  the  question  whether  it  is  merely  a  reasonable  and  con- 
venient regulation  of  the  right  to  vote,  or  is  under  the  pretense  of  regulation  an 
abridgment,  subversion,  or  restraint  of  tliat  right.    (Paine  on  Elections,  section  340.) 

In  the  case  of  Capen  m.  Foster  (12  Pick.,  485)  the  supreme  court  of 
Massachusetts  said: 

And  this  court 's  of  opinion  that,  in  all  cases  where  the  Constitution  has  conferred 
a  political  right,  or  privilege,  and  where  the  Constitution  has  not  particularly  des- 
ignated the  manner  in  whi3h  that  right  is  to  be  exercised,  it  is  clearly  within  the 
just  and  constitutional  limits  of  the  legislative  power  to  adopt  any  reasonable  and 
uniform  regulations  in  regard  to  the  time  and  mode  of  exercising  that  right  in  a 
prompt,  orderly,  and  convenient  manner.  Such  a  construction  would  afford  no  war- 
rant for  such  an  exercise  of  legislative  power  as,  under  the  pretense  and  color  of 
regulating,  should  subvert  or  seriously  restrain  the  right  itself. 

The  supreme  court  of  Pennsylvania,  in  the  case  of  Page  vfi.  Allen 
(58  Penn.  St.,  338),  pronounced  a  registry  law  of  that  State  unconstitu- 
tional on  the  ground  that  it  impaired  the  free  exercise  of  the  right  of 
suffrage  conferred  by  the  Constitution,    The  court  said : 

For  the  orderly  exercise  of  these  (constitutional)  qualifications  it  is  admitted  that 
the  legislature  must  prescribe  necessary  regulations  as  to  the  places,  mode  aud  man- 
ner, and  whatever  else  may  be  r.equired  to  secure  its  full  and  free  exercise;  but  this 
duty  and  right  inherently  imply  that  such  regulations  are  to  be  subordinate  to  the 
enjoyment  of  the  right,  the  exercise  of  which  is  regulated.  The  right  must  not  be 
impaired  by  the  regulations ;  it  must  be  regulations  purely,  not  destruction.  If  this 
were  not  an  immutable  principle,  elements  essential  to  the  right  itself  might  be  in- 
vaded, frittered  away,  or  entirely  exscinded,  under  the  name  or  pretense  of  regula 
tiou,  and  thus  would  the  natural  order  of  things  be  subverted,  by  making  the  prin- 
cipal subordiuate  to  the  accessory  ;  to  state  is  to  prove  this  position. 

To  crown  all,  the  supervisor,  without  notice  to  anybody,  aud  without 
ppsting  the  names,  is  required,  immediately  preceding  any  general 


MILLER    VS.    ELLIOTT.  513 

election,  to  revise  the  registry  aud  strike  off  the  aames  of  such  persons 
as  he  determines  have  died  or  have  clianged  their  residence  and  have 
neglected  to  notify  him  and  obtain  a  transfer  certificate. 

When  it  is  remembered  that  the  white  Democrats  of  the  State  are 
largely  the  property  owners,  having  permanent  places  of  residence,  and 
that  the  colored  men  are  poor,  mostly  tenants  and  laborers,  under  the 
necessity  of  frequently  changing  their  homes  the  hardship  and  in- 
equality of  the  law  are  more  strikinglj^  evident. 

It  would  seem  that  the  law  placed  enougn  obstructions  in  the  way  of 
registration  to  satisfy  the  most  earnest  believer  in  the  disfranchisement 
of  the  colored  men  of  South  Carolina,  but,  as  shown  by  the  record 
in  this  case,  the  supervisors  appointed  to  execute  it  have  succeeded,  in 
almost  every  instance,  in  erecting  other  and  most  effective  barriers 
not  provided  for  in  the  statute.  They  are  required  to  keep  their  books 
at  the  county  seat,  and  to  open  them  for  registration  on  the  first  Mon- 
day of  certain  specified  months,  but  they  are  not  required  to  give  any 
notice  of  where  they  keep  their  offices  or  their  books.  In  many  coun- 
ties a  diligent  search  on  the  part  of  Republicans  fails  to  discover  the 
supervisor's  office,  or,  when  it  is  found,  so  many  hindrances  and  obstruc- 
tions are  interposed  that  voters  fail  to  get  transfers  or  registry,  although, 
they  apply  at  every  opportunity,  during  every  month  of  registration  in 
the  year  of  a  general  election.  In  some  large  precincts  no  one  has  been 
able  to  secure  a  transfer  since  the  general  registry  in  1882. 

Albert  Beach,  supervisor  of  registration  of  Colleton  County,  testifies 
(p.  293)  that  in  Jacksouborough  precinct  there  have  been  no  renewals 
or  transfers  lor  the  la^  four  years ;  the  same  for  Adams  Run,  for  Dele- 
mars,  for  Gloverville,  and  for  Green  Pond. 

He  further  says  that  he  did  not  advertise  where  he  would  meet  the 
citizens  for  the  purpose  of  renewal,  transfers,  or  original  registration, 
because  it  was  generally  known  where  he  would  be. 

In  regard  to  the  action  of  this  same  supervisor,  we  quote  the  testi- 
mony of  W.  F.  Myers  (p.  95) : 

Q.  What  facilities  were  afforded  by  the  supervisor  of  registration  iu  registering, 
reuewiug,  and  transferring  certificates? — A.  So  far  as  Republicans  were  concerned 
no  lacilities  were  offered  for  registering  those  who  have  recently  come  of  age,  those 
who  had  removed,  nor  for  those  who  desired  renewal.  I  took  over  a  hundred  and 
fifty  amdavits  of  Republicans  applying  for  certificates,  and  at  one  time  had  a  num- 
ber of  applicants  to  come  to  the  court-house  from  a  great  distance  to  meet  the  super- 
visor, but  he  could  never  be  found.  On  the  other  hand  Democrats  were  afforded 
every  and  undue  opportunities  to  secure  theirs.  I,  on  the  4th  of  November  preceding 
the  last  tloctiou,  in  the  court-room,  was  an  unwilling  listener  to  a  conversation  be- 
tween Hon,  C.  G.  Henderson  and  the  supervisor'  ol  registration,  Beach,  when  the 
former  asked  for  those  certificates.  The  latter  replied  that  they  wore  made  and  in  his 
office.  He  went  out  and  returned  with  a  package  and  handed  it  to  Mr.  Henderson, 
which  I  supposed  were  the  certificates.  I  have  hud  two  citizens,  known  to  be  Dem- 
ocrats, to  tell  me  that  up  to  the  day  before  the  election  they  were  urgently  requested 
to  go  up  and  get  a  certificate  of  registration  that  they  could  go  up  and  vote  on  the 
6th,  which  they  declined  to  do. 

Q.  Did  the  supervisor  have  an  office;  if  so,  where  was  it? — A.  So  far  as  I  could 
ascertain  or  find  out  through  diligent  inquiry  he  had  not,  I  inquired  at  the  offices 
located  in  the  conrt-honse,  but  none  could  or  would  say  where  he  was  located,  ex- 
cepting Auditor  Smith,  who  said  he  (meaning  the  supervisor)  camo  into  his  (Smith's) 
office,  but  he  could  not  tell  me  if  he  had  a  permanent  office, 

J.  H.  Chapman,  page  92  of  record,  corroborates  Myers  when  ques- 
tioned : 

Q.  Do  you  know  if  any  person  or  persons  desifiug  to  register  or  have  their  regis- 
tration certificates  transferred  or  renewed  have  ever  gone  to  the  county  seat  at  any 
time  during  1888?    If  so,  state  the  dates  upon  which  they  went. 

(Objected  to  upon  the  grounds  that  the  x)ersons  applying  for  renewal  of  certificates 
are  the  best  evidence;  what  witness  might  say  would  be  hearfcay  and  inadmissible.) 

H.  Mis.  137 a'3 


514  MILLER    VS.    ELLIOTT. 

A.  I  do  know  of  such  persons  going  for  the  purpose  of  having  their's  renewed  or 
transferred ;  on  the  first  Monday  in  March,  first  Monday  in  April,  first  Monday  in  July, 
an<'  after  they,  along  with  myself,  got  up  to  Walterboro.  I  inquired  for  the  office  of 
the  supervisor  of  registration ;  I  inquired  of  Mr.  Myers  and  Jackson  Grant,  bat  I 
could  not  find  the  office. 

Q.  State  into  what  building,  if  any,  did  you  go  at  Walterboro  to  look  for  the  office 
of  supervisor  of  registration. — A.  I  went  in  the  court-house  and  I  looked  on  each 
side  of  the  building  as  1  passed  through  the  passage-way  for  the  sign  of  the  office  of 
supervisor  of  registration,  and  I  never  saw  auy  sign  of  said  office. 

Q.  State  if  while  there  looking  for  said  office  of  registration  if  you  saw  the  super- 
visor of  registration. — A.  I  did  not. 

Q.  Did  you  look  into  any  of  the  rooms  or  offices  in  the  court-house  building  for  the 
supervisor  of  registration  on  said  days  t — A.  I  did. 

W.  U.  Scott  {T)age  94  of  record)  goes  into  the  ofBce  the  supervisor  of 
registration  claims  to  use  on  the  proper  day  of  registration,  does  not 
find  him,  but  finds  the  auditor  of  the  county,  who  knows  nothing  ex- 
cept "  he  sometimes  comes  in  there."    Scott  being  questioned : 

Q.  Have  you  ever  gone  to  Walterboro  and  endeavored  to  find  the  office  of  super- 
visor of  registration  ;  and,  if  so,  state  what  happened. — A.  I  went  there  the  first 
Monday  in  last  March,  and  as  I  went  I  took  my  registration  certificate  with  me  to 
see  whether  I  could  get  it  change  from  Jacksonboro  to  Green  Pond,  and  as  I  went  up 
I  ask  Jackson  Grant  what  time  the  supervisor  will  be  in  and  whereabout  he  held 
his  office ;  he  told  me  to  go  to  the  court-house  and  I  would  find  out,  and  I  went  over 
and  saw  the  auditor;  Mr.  Smith  told  me  where  the  office  of  the  supervisor  was;  he 
said  sometimes  becomes  in  here  and  moreover  I  have  not  time  to  bother  with  you. 
Then  I  came  on  back  home  and  alter  I  came  back  I  wrote  a  letter  to  Major  Myers. 

Q.  Did  you  ever  go  back  again  ? — A.  I  went  back  the  first  Monday  in  June  and  did 
not  see  the  supervisor,  and  I  went  back  again  in  July  and  the  supervisor  was  pointed 
out  to  me ;  I  went  to  him  where  his  office  was  and  when  he  would  be  in,  as  they  had 
his  registrar  certificate  and  desire  to  have  it  change  from  Jacksonboro  to  Green  Pond 
and  had  forty  affidavits  of  persons  who  wanted  to  change  theirs  and  said  he  did  not 
know  when  he  would  be  in  Walterboro  and  he  had  no  office  there. 

As  to  Orangeburgh  County,  we  quote  from  the  testimony  of  E.  A. 
Webster  (p.  324) : 

Q.  Are  the  same  facilities  afforded  Republicans  and  Democrats  alike  in  registration 
of  voters  in  Orangeburgh  County? — A.  In  the  admiuistration  of  the  law  the  same 
facilities  are  not  allowed  to  Republicans  as  to  Democratic  voters.  The  Republicans 
are  not  able  to  find  the  supervisor  of  registration  for  the  purpose  of  changing  cer- 
tificates, registering  and  renewing.  The  supervisor  residing  some  ten  miles  from  the 
court-house,  his  office  has  not  been  kept  open  as  required  by  law.  Republicans  had 
access  only  during  the  time  his  office  was  opened.  The  office  on  those  days  crowded 
with  Republicans,  and  a  large  number  were  present  who  could  not  register,  though 
they  applied.  The  office  has  not  been  open  since  the  first  Monday  in  August,  1888,  to 
Republicans  previous  to  the  election.  In  my  judgment  there  were  at  least  fifteen  hun- 
dred who  applied  and  were  not  registered,  including  necessary  transfers  and  changes, 
on  the  last  day  in  question.  Just  before  the  closing  of  the  office  I  presented  to  the 
supervisor  of  registration  a  large  number  of  affidavits  of  lost  certificates  collected 
from  voters  present  from  the  Seventh  Congressional  district,  and  tend-  red  them  to 
the  supervisor,  requesting  that  he  should  issue  certificates  thereon,  which  he  refused 
to  do.  I  will  state  that  while  Republicans  met  with  this  embarrassment  ar.d  ob- 
struction certificates  were  issued  to  Democrats  without  personal  application.  I  pro- 
tested against  this,  as  Republican  county  chairman,  as  being  unfair.  The  super- 
visor, who  is  a  Democrat,  stated  to  mo  that  he  was  not  compelled  under  the  law  to 
make  these  changes  and  issue  certificates  except  upon  personal  application,  but  that 
if  he  choose  to  favor  his  political  friends  he  should  do  so.  I  applied  to  him  several  times 
after  the  first  Monday  in  August — meeting  him  on  the  street — to  make  some  changes 
in  certificates  for  change  of  residence,  and  to  issue  in  place  of  lost  certificates  upon 
affidavits  in  my  possession ;  this  he  refused  to  do.  My  instructions,  as  county 
chairman,  to  the  Republican  votere  who  applied  was  to  wait  about  or  at  the  office 
until  it  was  closed.  I  should  judge,  on  the  last  day,  that  about  250  or  300  were  there 
when  the  office  closed ;  many  of  them  from  the  Seventh  Congressional  district. 

By  means  detailed  by  these  witnesses,  thousands  of  Republicans  of 
the  seventh  district  were  deprived  of  such  certificates  of  registration  as 
the  managers  would  recognize.     Hundreds  of  them  went  to  the  polls 


MILLER   VS.    ELLIOTT.  515 

and  presented  their  old  certificates,  only  to  find  their  names  stricken 
from  the  books.  Many  of  them  were  voters  who  had  not  changed  their 
residence,  even  within  the  precinct  of  their  residence.  Some  who,  after 
much  trouble,  had  secured  transfer  certificates,  went  to  the  polls  and 
found  that  the  description  copied  into  the  precinct  registry  did  not 
agree  with  the  description  in  their  certificates,  and  so  were  unable  to 
vote. 

We  do  not  make  any  account  of  the  number  of  these  voters  who 
failed  to  get  certificates  and  who  tendered  their  votes,  because  in  this 
case  it  would  not  affect  the  result  farther  than  to  increase  contestant's 
majority ;  but  we  hold  that  all  such  persons,  otherwise  qualified,  were 
legal  voters. 

We  go  further,  and  hold  that  there  is  no  valid  registration  law  in 
South  Carolina.  The  election  machinery  of  the  State,  while  not  so  bad 
as  its  registration  laws,  is  still  of  a  character  which  can  not  well  be 
overlooked.  All  the  machinery  of  elections  is  in  the  hands  of  the 
Democratic  party.  The  governor  appoints  commissioners  of  election 
for  each  county,  without  provision  for  minority  representation,  there 
being  two  sets  of  these  commissioners,  one  for  State  and  the  other  for 
Federal  elections.  These  in  turn  appoint  precinct  managers.  To  these 
commissioners  the  returns  of  the  precinct  managers  are  returned,  to  be 
by  them  canvassed  and  certified  to  a  State  returning  board,  composed 
of  certain  State  officers.  Both  the  county  and  State  returning  boards 
have  quasi-judicial  powers,  instead  of  being  limited  to  the  canvass  and 
certification  of  the  vote  as  cast. 

From  seven  to  nine  ballot  boxes  are  required  to  hold  an  election ; 
one  for  governor  and  lieutenant-governor,  one  for  other  State  officers, 
one  for  circuit  solicitor,  one  for  state  senator,  one  for  member  of  the 
State  house  of  representatives,  one  for  county  officers,  one  for  repre- 
sentative in  Congress,  one  for  Presidential  elector,  and  a  ninth  box  if 
any  special  question  is  to  be  voted  on  at  that  election. 

These  boxes  are  to  be  labeled  according  to  the  officers,  the  two  Fed- 
eral boxes  to  be  presided  over  by  one  set  of  managers,  and  the  six  or 
seven  State  boxes  by  another  set.  Polls  for  Federal  and  State  elec- 
tions may  be  widely  separated.  All  the  tickets  are  to  be  of  a  specified 
description,  and  none  others  can  be  counted.  The  voter  is  required  to 
deposit  his  own  ticket,  and  find  out  for  himself  the  right  box,  the  man- 
agers on  demand  only  being  required  to  read  the  names  on  the  boxes, 
but  there  is  no  requirement  that  tbey  shall  designate  the  boxes  while 
pronouncing  the  names,  or  read  the  names  in  any  particular  order.  No 
other  person  is  permitted  to  speak  to  the  voter  while  in  the  polling 
place.    No  tickets  found  in  the  wrong  box  are  to  be  counted. 

This,  in  fact,  makes  an  educational  test,  in  direct  violation  of  the 
constitution  of  the  State.  Its  practical  operation  will  be  seen  when  we 
come  to  consider  the  details  of  this  case. 

In  the  Seventh  district,  except  in  one  county,  all  the  supervisors  of 
registration,  all  the  commissioners  of  election,  and  all  the  precinct  man- 
agers, were  Democrats,  the  Republicans  being  denied  representation 
on  any  of  the  boards.  The  only  way  to  have  watchfulness  at  the  elec- 
tion, by  persons  not  politically  hostile  to  contestant,  was  to  secure  the 
appointment  of  United  States  supervisors,  one  of  each  party,  who,  un- 
der the  present  law,  are  required  to  serve  without  compensation. 

On  the  27th  day  of  September,  1888,  the  Republican  executive  com- 
mittee of  the  State  addressed  a  communication  to  Governor  Richard- 
eon,  asking  for  representation  on  the  election  boards.    To  this  commu- 


516  MILLEE    VS.    ELLIOTT. 

nication  the  Governor  made  answer,  denying  the  request,  and,  among 
other  things,  said: 

It  will  be  suflScient  simply  to  say  that,  in  my  jiidgmeut,  a  departure  from  the  wisely- 
established  methods  and  principles  upon  which  these  appointments  are  made  would 
endanger  the  continuance  of  the  perfectly  free,  fair,  and  peaceful  elections — the 
professed  object  of  your  desire — that  are  the  proud  boast  and  the  highest  achieve- 
ment of  Democratic  rule  in  this  State. 

This  from  the  chief  executive  of  the  State,  when  denying  to  a  party 
which  outnumbered  his  party  four  to  one  in  the  Seventh  district,  a 
participation  in  the  conduct  of  the  election,  a  participation  which  is  re- 
garded almost  everywhere  else  as  necessary  to  honest  elections,  and 
when  denied  is  regarded  as  a  matter  of  law,  as  casting  a  suspicion 
upon  the  integrity  of  the  election  and  returns. 

But  the  governor  continues : 

To  the  eternal  honor  of  our  State  and  the  Democratic  party  it  can  now  be  said  that 
our  elections  are  the  freest  and  fairest  in  the  world,  and  that  not  a  single  citizen  of 
hers,  no  matter  what  his  rank,  color,  or  condition,  can,  under  her  just  and  equal  laws, 
impartially  administered  as  they  are,  be  by  any  perversion  or  intimidation,  barred 
at  the  polls  from  the  free  and  full  exercise  of  his  suffrage.  There  is  not  only  perfect 
freedom  in  voting,  but  the  amplest  protection  afforded  the  voter. 

From  what  we  have  said  of  the  registration  and  election  law  and  from 
the  examples  given  of  the  conductof  supervisors  of  registration,  it  will  be 
seen  that  we  do  not  agree  with  the  governor.  We  are  at  a  loss  to  under- 
stand how  such  language  could  be  used  with  sincerity.  In  the  further 
examination  of  this  ca6e  we  shall  show  how  grievously  the  governor  was 
deceived  as  to  the  Seventh  district,  if,  indeed,  his  answer  to  the  execu- 
tive committee  had  any  other  purpose  than  to  mislead  the  people  of  the 
United  States  outside  of  South  Carolina. 

With  this  general  review  of  the  situation  we  come  to  the  examination 
of  the  specific  facts  affecting  the  election. 

'    BALLOTS  IN  AVBONG  BOXES. 

The  first  question  which  we  consider,  which  resulted  in  a  loss  of 
votes  to  contestant,  is  the  failure  to  count  ballots  lor  him  found  in  the 
Presidential  box.  As  has  been  noted,  managers  of  elections  are  pro- 
hibited from  counting  any  ballots  found  in  the  wrong  box.  At  the 
federal  polls,  at  this  election,  there  were  two  boxes,  one  for  Presiden- 
tial electors,  and  one  for  Con.^n'Ssman.  Under  the  peculiar  wordingof 
the  statute,  unlettered  voters  are  obliged  to  rely  upon  those  of  their 
associates  who  can  read  to  learn  how  to  deposit  their  tickets  so  as  not 
to  get  thorn  into  the  wrong  box,  and  vso  lose  their  votes. 

If  the  two  boxes  are  put  into  position  before  the  voting  commences, 
and  are  permitted  to  remain  in  the  same  position  during  the  day,  there 
is  little  danger  of  any  mistake,  all  the  voters  being  instructed  as  to 
their  position  by  those  in  whom  they  have  confidence.  But  if  the  boxes 
are  shifted  about  at  intervals  during  the  day,  it  follows  as  a  matter  of 
course  that  every  unlettered  voter  who  goes  to  the  poll  after  the  change 
and  before  its  discovery  deposits  his  ballot  in  the  wrong  box,  and  loses 
his  vote  so  far  as  the  count  of  the  managers  is  concerned.  There  is  no 
prohibition  in  the  statute  against  shifting  the  boxes,  and  so  it  is  assumed 
by  the  managers  of  election  that  they  have  a  right  to  shift  the  boxes  as 
often  as  they  please,  for  the  express  purpose,  as  they  acknowledge,  of 
confusing  the  voters  and  causing  them  to  deposit  their  ballots  in  the 
wrong  box. 

It  was  gravely  argued  before  the  committee  by  an  eminent  lawyer 
that  there  was  nothing  wrong  in  this  shifting  of  boxes,  and  that  con- 


MILLER   VS.    ELLIOTT.  517 

testee  was  entitled  to  all  the  benefits  accruing  to  him  by  reason  of  such 
action.  An  act  may  not  expressly  be  forbidden  by  law,  but  if  it  is  done 
with  an  unlawful  purpose,  and  succeeds  in  accomplishing  that  purpose, 
the  act  is  thereby  made  unlawful. 

At  this  election,  in  a  large  number  of  precincts,  tbis  shifting  of  boxes 
was  resorted  to.  The  facts  and  the  motive  are  proven  beyond  a  rea- 
sonable doubt.  We  submit  a  few  extracts  from  the  evidence  upon  this 
branch  of  the  case: 

Daniel  Ravenel,  Kepublican  United  States  supervisor  at  Jourdin's, 
Williamsburgh  County,  says  (p.  8) : 

Q.  Was  the  position  of  tho  boxes  changed  during  the  progress  of  the  election  that 
day?— A.  Yes,  sir. 

Q.  By  whom  ?— A.  By  the  managers. 

Q.  About  bow  many  times? — A.  As  well  as  I  can  recollect  about  six  or  seven  times. 

Q.  Did  you  show  the  voters  or  attempt  to  show  the  voters  what  box  to  deposit  their 
ballots  in  f— A.  I  attempted  to  show  them,  but  the  managers  objected. 

M.  M.  Monzon,  Eepublicau  United  States  supervisor  at  Kingstree, 
says  (p.  13): 

Q.  How  many  ballots,  if  any,  were  found  in  the  Presidential  electors'  box  bearing 
the  name  of  Thomas  E.  Miller  for  member  of  Slst  Congress  frpm  the  Seventh  Con- 
gressional district?— A.  Sixty-six  were  in  the  wrong  boxes. 

Q.  What  was  done  with  those  ballots;  were  they  counted  for  Thomas  E.  Miller? — 
A.  No,  sir;  they  were  not  counted  for  Miller.     They  were  destroyed  by  the  managers. 

Q.  Was  the  position  of  the  boxes  changed  that  day  during  the  election  ? — A.  They 
were,  a  number  of  times. 

Q.  By  whom  were  they  changed? — A.  By  the  managers  of  election. 

Jesse  S.  Fulmore,  Eepublican  United  States  supervisor  at  Indian- 
town  (p.  1.5),  says : 

Q.  What  was  done  with  those  81  ballots  ? — A.  They  were  taken  ont  and  destroyed. 

Q.  Then  they  were  not  counted  for  Thomas  E.  Miller  ? — A.  No,  sir. 

Q.  Who  destroyed  them  ? — A.  The  managers  of  election. 

Q.  Were  the  managers  of  election  Republicans  or  Democrats? — A.  They  were  all 
Democrats. 

Q.  Was  the  position  of  the  boxes  changed  or  shifted  about  that  day,  during  the 
progress  of  the  election  ? — A.  Yes,  sir ;  they  were  changed  from  one  place  to  another 
at  least  five  times. 

Q.  Who  shifted  or  changed  them  about  ? — A.  The  managers  of  election. 

B.  J.  Fortune,  Republican  United  States  supervisor  at  Corbell's  Store 

(p.  21),  says: 

Q.  What  became  of  the  other  29  ballots  ?— A.  They  were  destroyed  by  the  managers. 

Q.  Why  were  they  destroyed  ? — A.  Because  they  were  placed  into  the  wrong  box. 

Q.  What  box? — A.  Into  the  Presidential  box. 

Q.  Whose  names  did  these  ballots  bear?— A.  T.  E.  Miller. 

Q.  Was  the  position  of  the  boxes  changed  during  the  election  from  the  position  they 
were  in  at  the  beginning ;  if  so,  by  whom  ? — A.  They  wore  changed  about  b  or  9  times 
by  W.  A.  Cooper  and  Robert  Wilson,  the  managers. 

Q.  Did  you  hear  the  managers  making  any  remarks  in  regard  to  the  change  of  the 
boxes?— A.  I  did  not,  although  I  called  attention  to  change. 

Q.  To  what  political  party  did  the  managers  belong? — A.  The  Democratic  party. 

L.  R.  Davis,  Republican  United  States  supervisor  at  Sumter  (p.  24), 
says : 

Q.  Whose  name  did  these  9  ballots  bear? — A.  T.  E.  Miller. 

Q.  Was  the  position  of  the  boxes  changed  during  the  election  from  the  position  they 
were  in  when  the  voting  began;  if  so,  by  whom? — A.  Changed  frequently  by  the 
managers. 

Q.  After  they  were  so  changed,  and  a  voter  would  vote,  what  did  the  managers 
say  ? — A.  They  did  not  say  anything,  except  on  one  or  two  occasions. 

Q.  What  was  said  on  those  occasions  ? — A.  On  one  occasion  I  wanted  to  vote  my- 
self ;  the  box  was  shifted  around,  and  the  managers  laughed  and  said  I  made  him 
vote  in  the  wrong  box. 


518  MILLER    VS.    ELLIOTT. 

Q.  To -what  political  party  did  the  managers  beloDg? — A.  The  Democratic  paity. 

Q.  Did  you  keep  a  poll-list  ? — A.  I  tried  to  do  it,  but  was  prevouted. 

Q    State  who  prevented  you  from  keeping  a  poll-list. 

(Objected  to  as  irrelevant,  nothing  in  the  ground  of  coulcst.) 

A.  The  list  I  was  keeping  was  snatched  from  me  several  times  by  Mr.  R.  D.  Lee, 
counsel  for  contestee  and  Democratic  county  chairman. 

(Objected  to  on  above  grounds.) 

Q.  Do  yon  know  what  official  position,  if  any,  Mr.  Lee  held  at  the  polls  on  that 
day  ? — A.  I  think  he  held  a  position  as  constable. 

Q.  Did  you  keep  or  succeed  in  keeping  any  part  of  the  poll-list  ? — A.  None  ;  I  tried 
twice ;  it  was  snatched  and  destroyed. 

Q.  Was  any  violence  offered  to  you  by  any  of  the  managers,  if  you  should  keep  a 
poll-list  T 

(Objected  to  as  above.) 

A.  I  was  threatened  to  be  put  out  if  I  kept  another  poll-list. 

M.  Jolmsou,  Republican  United  States  supervisor  at  Eastover  (p. 
319),  says : 

Q.  state  if  you  can  where  the  boxes  were  placed  while  the  voting  was  being  done, 
and  if  they  were  changed  as  to  position  during  the  day  by  any  one. — A.  The  boxes 
were  placed  on  board  partition  between  the  managers  and  the  person  voting,  and  were 
shuffled  by  the  managers  during  the  day. 

Q.  State  if  there  was  any  object  or  closed  partition  between  where  the  managers 
of  election  stood  and  where  you  stood  while  the  voting  was  being  conducted. — A.  I 
was  placed  at  such  a  position  by  the  chairman  of  the  board  of  managers  from  which 
I  could  seethe  voting,  but  the  boxes  were  being  changed  so  that  I  could  not  see  them 
when  they  were  handled  or  changed  by  the  managers. 

Q.  Do  you  mean  by  above  answer  to  say  that  either  of  the  boxes  was  taken  off'  of 
where  they  were  placed  originally,  out  of  your  sight,  by  any  one?~A.  I  do,  as  the 
managers  took  theiu  oif  from  where  they  were  originally  placed  ;  I  could  not  see  them. 

Q.  When  they  took  them,  or  either,  from  where  they  were  originally  placed  where 
would  they  place  them  ?  I  mean,  would  they  place  them  between  you  and  any  object 
or  not  f  If  so,  state  what  the  object  was. — A.  They  would  place  them  behind  this 
board  partition  on  a  box  or  something  of  the  kind,  and  would  then  change  tbem. 

Q.  While  the  boxes  or  box  was  taken  out  of  its  original  place  and  placed  behind 
the  board  partition  were  you  in  a  position  to  see  what  was  done  to  or  with  the  boxes 
or  box  by  any  one? — A.  I  was  not  from  the  fact  that  the  partition  prevented  my 
seeing,  and  anything  could  have  been  done  with  the  boxes  while  they  were  changing 
them. 

Q.  Why  did  you  not  go  behind  the  partition  whenever  any  one  took  a  box  or  boxes 
out  of  your  sight? — A.  I  was  assigned  te  my  position  in  the  room  by  chairman  of 
board,  where  I  had  to  remain  all  day. 

J.  G.  Eason,  Democratic  United  States  supervisor  at  Eastover  (p. 
332),  says: 

Q.  Did  the  managers  or  any  one  of  them  in  any  way  interfere  or  intermeddle  with 
any  of  the  voters,  except  to  put  to  them  certain  questions  required  by  law,  while 
casting  their  votes  ?  -A.  No  ;  they  never  interfered  with  any  one. 

Q.  What  disposition  or  arrangement  would  the  managers  make  with  reference  to 
the  boxes  during  the  day  while  the  election  was  going  on  ? — A.  The  only  thing  I  saw 
them  do  with  the  boxes  was  to  change  the  position  of  the  two  boxes.  That  is,  place 
one  where  the  other  had  been.  This  was  done  openly,  so  Johnson  and  I  could  see  it 
done.  One  box  was  distinctly  labeled  for  Presidential  electors  and  the  other  was 
distinctly  labeled  for  member  of  Congress. 

Q.  Why  was  this  interchange  of  boxes  made  ? — A.  I  think  the  cause  was  that  John- 
son began  sending  out  notes  stating  which  sides  the  respective  boxes  for  electors 
and  Congressman  were  on. 

Q.  Can  you  say  how  many.these  shiftings  of  the  boxes  were  made  during  the  day  ? — 
A.  I  can  not. 

Q.  How  long  were  the  managers  in  making  the  shifting  of  the  boxes  ? — A.  It  was 
momentarily.     They  would  pick  up,  move  the  other  in  its  place,  and  put  it  down. 

Q.  In  making  these  changes  was  any  one  of  them  ever  taken  out  of  Johnson's 
sight  ? — A.  I  could  always  see  them  myself. 

And  on  cross-examination : 

Q.  The  ballot-boxes,  you  say,  were  transposed  several  times  through  the  day  ?— A. 
Yes. 

Q.  And  ballots  were  deposited  by  colored  voters  after  these  changes  as  well  as  bj 
white  voters  ? — A.  Yes. 


MILLER    VS.    ELLIOTT.  519 

Q.  When  a  voter  went  to  the  boxes  to  deposit  his  ballot  did  anybody  accompany 
him  f — A.  No, 

Q.  Or  did  anybody  explain  to  the  voter  the  character  of  the  respective  boxes  ? — A. 
No.  ' 

Q.  And  therefore  if  a  voter  who  conld  not  read  shonld  deposit  his  ballots  in  the 
boxes  according  to  the  information  be  bad  previously  received  as  to  their  location, 
there  would  be  no  certainty  of  his  ballots  going  into  the  boxes  he  bad  intended  ? — A. 
No  ;  I  think  not. 

Q.  And  is  that  the  way  it  happened  that  there  were  8  or  10  ballots  in  one  of  the 
boxes  which  the  managers  destroyed  because  they  were  in  the  wrong  box  ? — A.  I  sup- 
pose that  was  the  way  of  it. 

Eobert  Wilson,  Democratic  manager  at  Oorbett's  Store  (p.  347),  says : 

Cross-examined  by  Mr.  Whittaker  : 

Question.  By  whom  was  the  position  of  the  boxes  changed  ? — Answer.  In  some 
cases  by  myself,  and  in  some  by  Mr,  W.  A.  Cooper,  one  of  the  managers. 

Question'  Why  was  the  position  ot  the  boxt^s  changed  ?— Answer.  They  were 
chauytd  to  carry  out  the  spirit  of  the  late  and  test  the  intelligence  of  the  voter.  The  voters 
were  being  directed  by  a  man  who  had  climbed  up  a  tree  so  that  he  could  see  the  po- 
sition of  the  boxes  over  the  barricade  ;  the  voters  were  coming  in  with  their  ticl^ets 
and  hands  held  upright,  one  in  one  band  and  one  in  another,  and  whenever  the  boxes 
were  changed  the  man  up  the  tree  would  hollow  out,  "  Mind  dare!"  "  Change  dem 
tickets!" 

Question.  Why  were  the  boxes  labeled? — Answer.  They  were  delivered  to  us 
labeled. 

Question.  State  that  law  which  in  our  State  directs  the  managers  to  test  the  intel- 
ligence of  the  voter  by  any  means. — Answer.  I  linow  of  no  law  which  directs  us  and 
none  to  prohibit.  We  understood  the  spirit  of  the  law  to  be  that  each  man  must  read  for 
himself  the  lai>els  upon  the  boxes. 

Question.  Does  the  spirit  of  the  law  prevent  any  person  outside  of  the  polling  place 
directing  a  voter  how  and  where  to  deposit  his  ballot  ? — Answer.  We  think  so,  as  it 
required  us  to  put  up  secure  barricades. 

Question.  Was  the  position  of  the  boxes  changed  while  the  voters  were  in  the  poll- 
ing place  T — Answer.  In  some  cases  it  was.  "  *  *  The  position  of  tlie  boxes 
were  changed  several  times  that  day  ;  I  know  of  no  law  to  prevent  it ;  Fortune  ob- 
jected and  we  told  him  if  he  would  show  us  any  law  to  prohibit,  we  would  not  move 
them  again  ;  he  examined  his  copy  of  the  law  carefully  and  told  us  that  he  saw  none. 

As  to  this  witness'  statement  of  the  law  for  putting  up  "secure  barri- 
cades," it  may  be  said  that  tbe  law  provides  that  au  luclosure  "  shall 
ha  railed  off,  or  otherwise  provided"  (sec.  29),  thus  showiug  that  the 
law  does  not  contemplate  a  tight  barricade  which  shall  shut  off  the 
view. 

(J.  O.  Marshall,  Democratic  manager  at  Eastover  (p.  336),  says: 

Q.  Were  any  of  these  two  boxes  in  which  the  election  was  held  carried  or  taken  by 
any  person  out  of  the  sight  ol  the  managers? — A.  They  were  not. 

Q.  During  the  time  ot  the  electiou  were  these  two  boxes  shifted  or  transposed  on 
this  shelf  upon  which  they  rested?— A.  They  were. 

Q.  For  what  purpose  were  these  boxes  transposed  and  in  what  manner? — A.  When 
we  made  the  first  change  Mcf^hoch  Johnson,  the  Republican  supervisor,  spoke  to  a 
voter  and  told  him  to  tell  them  outside  about  the  position  of  the  boxes.  1  called  his 
attention  to  the  State  law  forbidding  any  one  to  speak  to  voters.  He  then  got  to 
sending  notes  out  by  voters,  trying  to  give  them  to  voter  surreptitiously.  The  boxes 
were  changed  several  times  in  consequence  of  this  U.  S.  supervisor  trying  to  defeat  the 
election  laws,  thus  trying  to  give  his  party  an  undue  advantage. 

This  resulted  in  a  net  loss  to  contestant  of  over  a  thousand  votes. 
This  account  excludes  from  consideration  all  votes  in  those  precincts 
where  the  voters  deposited  the  same  kind  of  a  ballot  in  each  box,  so  as 
to  make  sure  that  one  of  them  would  be  counted,  and  only  takes  into 
consi<leration  those  ballots  which  are  shown  by  the  number  voting,  the 
number  of  ballots  in  the  box,  or  by  corresponding  electoral  ballots  in 
the  wrong  box,  to  have  been  placed  in  the  wrong  box  by  mistake,  and 
against  the  intention  of  the  voter. 

In  every  instance  but  one,  the  shifting  of  the  boxes  is  shown.  The 
purpose  was  uulawful,  the  result  was  the  failure  to  have  couuted,  and 


120 


MILLER   VS.    ELLIOTT. 


the  destruction  of  over  1,000  ballots  cast  for  contestant  by  duly  qu.T,lified 
voters. 

The  managers  of  election  took  no  account  of  these  ballots,  imme- 
diately destroyed  them  under  a  claim  that  the  law  so  directed  (a  claim 
not  sustained  by  the  statute),  and  as  witnesses  almost  universally  show 
a  remarkable  forgetfulness  as  to  their  number.  The  United  States 
supervisors,  present  at  all  the  polls  when  this  destruction  occurred, 
kept  an  account  of  the  number,  and  by  that  means  we  are  able  to  as- 
certain with  reasonable  certainty  the  whole  number  lost. 

Following  are  the  precincts  where  losses  of  this  character  occurred, 
with  the  net  number  after  deducting  any  losses  sustained  by  Elliott. 


Williamsbnrg  County: 

Gourdin's 22 

Blooming  Vale 10 

Blank  Mingo 23 

Greelevville 128 


Salters . 

Cade's 

Kingst  roe 

Indiautowii 

Sumter  County : 

Corbett's  Store 

StatesfiurgU 

Sumter 

Ly nchburgh  

Eaftin  Creek 

Bethel  Cross  Roads. 
Mayesville 


Orangeburg  County : 

Washington  Seminary 25 

FortMotte 16 

Colleton  County : 

Adams  Knu 95 

Berkeley  County : 

Strawberry  Ferry 21 

Biggin  Church 18 

Black  Oak    44 

Ten-Mile  Hill 37 

CalamuH  Pond 32 

Muster  House 38 

Brick  Church 11 

Camp  Ground 150 

Haut  Gap 61 


Total .1,049 

Making  large  allowance  for  any  mistake  in  numbers,  we  add  1,000 
to  the  returned  vote  for  Miller,  making  his  vote  8,003,  after  this  addi- 
tion, and  leaving  Elliott's  majority  355. 

It  will  hardly  be  claimed  by  any  one  that  this  unlawful  attempt  by  the 
partisan  friends  of  contestee,  acting  as  managers  of  election,  to  dis- 
franchise a  thousand  voters,  ought  to  be  permitted  to  succeed,  in  a 
contest.    Both  law  and  justice  forbid. 

If  the  intention  of  the  elector  can  be  ascertained,  it  is  not  to  be  defeated  merely 
because  the  inspector,  through  mistake  or  fraud,  deposits  his  ballot  in  the  wrong 
box;  nor  because  the  elector  himself,  by  mistake  without  fraud,  places  it  iu  the 
wrong  box.     (People  vs.  Bates,  11  Mich.,  368.) 

Here  the  elector  placed  his  ballot  in  the  wrong  box  by  mistake,  the 
result  of  the  unlawful  and  fraudulent  acts  of  the  managers  of  the  elec- 
tion. It  is  no  answer  to  ssiy  that  the  counting  of  such  ballots  is  pro- 
hibited by  statute  (even  admitting  that  the  statute  is  a  reasonable  regu- 
lation, which,  under  the  peculiar  circumstances  in  South  Carolina,  we 
do  not),  when  the  mistaken  deposit  has  resulted  from  the  active  decep- 
tion of  the  managers.  It  is  a  crime  at  common  law  to  enter  into  a  con- 
spiracy to  commit  any  offense  against  the  purity  and  fairness  of  a  pub- 
lic election.    (Paine  on  Elections,  section  496,  and  authorities  cited). 

BALLOT-BOX    STUFFING. 


COLLETON    COUNTY. 

Gloverville  precinct — Here  the  whole  number  of  votes  polled  for  mem- 
ber of  Congress  was  134;  113  were  returned  for  Elliott,  and  20  for  Miller. 
When  the  box  was  opened  at  the  close  of  the  polls  it  was  found  to  con- 
tain an  excess  of  85  ballots,  more  than  half  as  many  again  as  were  actually 
voted.  This  proves  that  the  box  was  dishonestly  stufied  bj^  somebody. 
The  managers  were  all  Democrats  and  friends  of  contestee.  It  is  scarcely 
possible  that  it  could  have  been  done  by  the  voters.  But  the  evidence 
leaves  no  doubt  upon  the  question  as  to  who  committed  the  crime. 


MILLER    VS.    ELLIOTT.  521 

The  United  States  supervisor  went  to  the  polling  place  very  early  in 
the  morning,  and  staid  in  front  of  the  usurI  polling  place  waiting  for  the 
managers  to  come  and  prepare  to  open  the  polls.  Before  the  time  for 
opening  the  polls  James  H.  Dodd,  one  of  the  managers,  came  to  the  fire 
where  the  United  States  supervisor  was  standing,  and  on  being  asked, 
answered  that  the  poll  was  to  be  held  in  the  store. 

While  the  supervisor  and  Dodd  were  talking  the  clerk  of  the  store 
opened  the  door,  where  the  voters  afterwards  entered  to  vote.  The 
supervisor  entered  the  store  and  asked  to  have  the  ballot-box  opened 
before  the  election  commenced.  He  was  then  informed  that  the  election 
had  already  commenced,  and  j8ve  ballots  been  deposited.  The  time  for 
voting  had  not  yet  arrived,  the  polling  place  had  not  been  opened,  no 
proclamation  had  been  made;  with  the  exception  of  Nero  Williams, 
who  was  seen  coming  from  the  back  door  of  the  store,  all  of  these  first: 
five  voters  slept  in  the  store  in  which  the  poll  was  opened  the  night 
previous  to  the  election.  Three  of  the  five  were  not  registered  voters 
and  two  of  them  were  managers  of  the  election. 

Here  is  clear  evidence  of  a  conspiracy :  The  getting  together  the  night 
before  and  sleeping  in  the  polling  place,  the  pretended  opening  of  the 
polls  before  the  polling  place  was  opened  and  the  United  States  super- 
visor admitted,  and  the  deposit  of  illegal  ballots  so  as  to  make  an  ex- 
cuse for  not  exposing  the  interior  of  the  box  to  the  inspection  of  the 
United  States  supervisor,  the  peculiar  twisted  character  of  the  tickets 
in  the  box,  which  could  not  have  been  placed  there  by  the  voters  on 
account  of  the  narrow  opening,  and  which  were  not  taken  when  the  ex- 
cess of  ballots  was  drawn  out  under  a  pretense  of  complying  with  the 
law — all  reach  to  the  inevitable  conclusion  that  the  box  was  stuifed 
with  Elliott  tickets  before  the  voting  commenced.  We  insert  here  the 
testimony  of  E.  M.  Chisolm,  United  Sthtes  supervisor  (record,  pp.  285, 
280,287): 

E.  M.  Chisolm,  being  duly  sworn,  says: 

Q.  State  your  age,  occupation,  residence,  and  where  yon  were  on  the  6th  day  of 
November,  18S8. — A.  I  am  31  years;  am  a  farmer;  live  in  Gloverville  Precinct;  was 
at  Gloverville  acting  as  supervisor  on  November  6  last. 

Q.  State  tor  whom  you  voted  as  member  of  Congress  from  the  seventh  district  on 
the  6th  of  November/lcd8,— A.  For  T.  E.  Miller. 

(Objection.) 

Q.  State  from  whom  did  yon  get  your  ballot,  if  you  can  read,  and  how  many  bal- 
lots or  tickets  did  you  vote  for  Congressman  at  the  last  election. — A.  From  Abrahm 
Small,  who  was  distributing;  can  read;  voted  one  ticket  for  Congressman. 

(Objection.) 

,Q.  State  at  what  precinct  did  you  vote,  and  if  any  one  read  your  ticket  for  you. — 
A.  Gloverville;  read  my  own  ticket. 

Q.  How  many  boxes  were  at  the  poll  that  day? — A.  Two. 

Q.  State  the  name  of  the  person  who  read  your  ticket  to  you,  and  to  what  political 
parly  he  belongs. — A.  Abrahm  Small;  he  is  a  Republican. 

Q.  You  have  stated  that  you  were  supervisor  at  Gloverville  poll ;  state  what  time 
in  the  morning  you  arrived  at  the  polls,  what  you  saw,  and  what  was  done  by  you 
and  the  managers  or  any  other  persons  connected  with  the  poll. — A.  I  think  it  was 
about  half  past  four  when  I  reached  the  poll  the  morning  of  election ;  I  met  there 
Abrahm  Small,  Sam  Hawkins,  and  Rob't  Smalls;  I  inquired  of  them  as  to  where  the 
voting  would  take  place  ;  that  was  then  right  opposite  the  store  where  elections  are 
generally  held ;  as  we  saw  none  of  the  managers,  after  being  there  about  half  an 
hour,  things  being  quite  still :  then  we  heard  a  little  thuniping  in  the  store  as  if  some 
one  was  getting  up  putting  on  their  shoes,  after  which  we  saw  the  two  so-called 
Democrats,  Ceasar  Chisolm  and  Nero  Williams,  come  from  the  back  part  of  the  store 
and  walk  to  our  fire;  we  waited  some  time  when  Joe  Dodd,  another  of  the  managers, 
come  from  behind  the  store  with  his  brother,  Julius  Dodd;  we  judge  they  came  from 
out  of  the  store. 

After  being  there  a  little  while  I  said  to  Mr.  Dodd,  "Where  will  the  poll  be  held 
to-day  f"    He  said  he  was  manager  of  the  Congressional  poll.     I  said,  "That's  the 


522  MILLER   VS.   ELLIOTT. 

poll  I  am  asking  yoa  about."  In  that  time  the  front  door  of  the  store  wasoppned  by 
W.  F.  Hill,  a  clerk  in  the  store.  Mr.  Dodd  invited  me  in  alter  I  told  him  1  was  8U« 
pervisor — Joe  Dodd,  I  mean.  He  showed  me  how  the  voters  wonld  come  in  to  a  win- 
dow. I  said  to  him,  "  Mr.  Dodd,  the  law  requires  me  to  look  into  the  box  before  the 
voting  commences."  Instead  of  giving  me  a  direct  answer  he  touched  another  of  the 
managers,  Ceasar  Chrisolm,  and  walked  off';  then  they  had  a  conversation,  after 
which  he,  Dodd,  said,  "It  is  too  late  now,  you  can  not  look  in  the  box."  Then  I 
said,  "  I  will  note  your  objections."  He  said,  "  All  right."  He  again  repeated  that 
"  we  refuse  on  the  ground  that  it  was  too  late."  I  asked  him  the  hour.  He  said  the 
poll  was  opened  at  six  o'clock ;  I  said  it  is  not  now  six  o'clock,  because  we  have  the 
time  right  here  and  it  lacks  now  five  minutes  to  six.  Then  he  pulled  out  his  watch 
saying,  "Gracious,  it  is  near  7  o'clock!"  He  said  at  this  juncture  that  they  had 
commenced  voting;  I  said,  "Well,  I  was  here  about  two  hours  ago,  and  I  saw  no  one 
vote;  if  anybody  has  voted  give  me  the  names  that  I  may  copy  them."  He  presented 
his  name  (Joe  Dodd)  first;  the  next,  I  think,  was  Ceasar  Chisolm,  W.  F.  Hill,  Nero 
Williams,  and  Julius  B.  Dodd,  which  I  copied. 

(W.  B.  Gruber,  counsel  for  contestee,  objects  to  any  conversation  had  between  the 
supervisors  and  the  managers  or  any  person  or  other  persons  than  the  managers, 
upon  the  ground  that  it  is  irrelevant  and  hearsay,  and  therefore  not  admissible.) 

Q.  State  whether  the  election  was  quiet  during  the  day. — A.  Yes,  everything  went 
on  perfectly  quiet. 

Q.  State  what  was  done  by  you  or  the  managers  at  the  close  of  the  poll,  relating 
all  the  circumstances  that  happened  during  the  canvassing  and  counting  of  the  votes. 

(Objection  on  ground  that  if  the  witness  as  Federal  supervisor  performed  his  duty 
as  the  law  required  him  to  do  and  reduced  to  writing  in  the  form  of  a  report  the  mat- 
ters he  is  now  called  upon  to  testify,  as  to  that  the  report  would  be  the  highest  and 
best  evidence  as  to  what  happened,  and  secondary  evidence  inadmissible.) 

A.  Atter  copying  the  few  names  that  was  given  me  by  Mr.  Dodd,  and  he  showed 
me  the  window  at  which  the  people  were  to  vote,  I  saw  the  difficulty  that  seemed  to 
be  intended  for  fraud.  I  saw  it  was  necessary  the  way  they  had  it  arranged  to  have 
some  one  right  at  the  window  to  give  these  men  their  tickets.  I  then  choose  one  I 
knew  was  competent  to  issue  out  and  stand  at  the  window.  They  were  instructed 
that  as  each  man  came  up  to  vote  Abrahm  Smalls  was  to  hand  him  his  tickets.  The 
Democrats  did  the  same,  having  a  man  on  the  other  side  of  the  window  to  hand  their 
tickets.  This  rule  was  observed  the  whole  day,  vote  after  vote,  until  the  closing  of 
the  poll.  Then  Joe  Dodd,  one  of  the  managers,  said  that  "  every  one  of  you  leave  the 
house,  and  all  of  th  •  white  men  come  in."  Chisolm,  he  said,  "you  can  stay  ;  I  did 
not  mean  you,  and  Abrahm  Smalls  can  stay  with  you."  Before  they  commenced 
counting  they  seemed  somewhat  confused  as  to  how  they  should  count.  That  is,  Joe 
Dodd,  who  seemed  to  be  the  chief,  and  Ceasar  Chisolm,  they  stepped  off  a  space,  hold- 
ing a  secret  talk.  They  came  back  and  suggested  how  they  should  count,  which  was 
that  they  would  throw  all  the  ballots  out  of  the  small  box  into  a  larger  one,  which 
they  did.  Then  Ceasar  Chisolm  commenced  to  count  right  off";  then  Joe  Dodd,  point- 
ing his  finger,  said,  "Hold  on,  you  must  stir  the  votes  up  first;  stir  them  up  ;  keep 
your  eyes  out."  Then  they  went  on  ;  they  then  count«d  without  giviug  candidates 
any  credit  at  all,  after  which  they  had  a  considerable  lot  of  votes  over  the  names  on 
the  poll-liHt — 229  in  all  in  the  box  Then  they  found  that  the  total  number  of  names 
on  poll-list  was  134;  then  thev  proceeded  to  give  candidates  their  credit.  The  ques- 
tion came  up  as  to  the  excessive  votes — what  was  to  be  done  with  them.  One  of  the 
niauaiiers  then  turned  his  back,  but  not  his  eyes.  I  then  observed  that  the  general 
Republican  votes  was  folded  and  a  portion  of  the  Democratic  votes  was  fohled  and 
the  rest  was  twisted.  Then  they  would  draw  one  of  the  folded  votes — the  twisted  votes 
were  never  drawn — until  they  got  down  to  the  number  on  the  poll-list,  destroying  as 
they  drew.  The  managers  then  suggested  that  we  now  go  into  a  general  drunk,  which 
was  done.  I  refused  to  join,  against  their  urgent  and  frequent  requests.  They  com- 
menced to  call  off"  the  tickets.  Joe  Dodd  would  take  them  from  the  box  and  Ceasar 
Chisolm  would  call  the  names  from  the  tickets,  giving  each  candidate.  Miller  and 
Elliott,  credits.  He  called  to  a  certain  number  and  stopped  at  the  suggestion  of  Joe 
Dodd  to  take  another  drink,  seeming  to  be  more  polite  to  me  that  night  than  ever  be- 
fore; theu  they  tinit>hed  up  the  canvassing,  giving  Elliott,  I  think,  114  and  Miller  21. 

(Counsel  for  contestee  objects  on  ground  that  result  of  the  vote  should  be  proved 
by  the  written  return  of  the  managers  and  supervisors.) 

Q.  Did  you  obseive  or  notice  what  name  or  names  was  on  the  ballots  as  they  were 
counted  f — A.  I  did  not,  because  they  had  the  table  crowded  and  they  seemed  to  stand 
from  me  while  counting. 

Q.  What  was  ihe  name  of  the  person  who  called  the  names  from  the  tickets,  andean 
he  read  aud  write? — A.  Ceasar  Chisolm  ;  I  suppose  he  can  sign  his  name,  you  may 
call  that  writing,  aud  I  suppose  he  could  distinguish  the  names  between  Elliott  and 
Miller. 

Q.  State  whether  you  noticed  the  hole  or  aperture  in  the  Congressional  box  and 


MILLER   VS.    ELLIOTT.  '''>28 

whether  those  twisted  tickets  cotild  have  been  voted  through  that  hole  and  fonnd  in 
the  condition  which  they  were. — A.  I  did  notice  the  hole  ;  that's  what  aronsed  my  at- 
tention to  notice  these  twisted  tickets  and  they  could  not  have  been  voted  through 
til  at  hole. 

Q.  State  the  name  of  the  person  who  had  the  key  and  opened  the  box  or  boxes  at 
the  close  of  the  poll.— A.  Joe  Dodd. 

Q.  Were  you  in  a  position  to  know  the  number  of  Republican  votes  that  were  dis- 
tributed by  Smalls  at  the  window  and  voted  by  the  voters? — A.  I  was;  I  saw  every 
person  as  he  came  and  offered  to  vote.  One  man,  Sam  Perry,  wanted  to  assist  Smalls 
and  I  refused  to  allow  him,  as  he  was  not  conipetent.to  distinguish  the  different  votes. 
Chisolm,  one  of  the  Democratic  managers,  was  there  at  dift'erent  times  trying  to  poke 
Democratic  tickets  in  Republican  hands.  I  know  every  man  in  Gloverville  Township 
and  know  of  only  two  colored  men  who  voted  the  Democratic  ticket. 

Q.  Do  you  know  the  number  of  white  voters  who  are  entitled  to  vote  at  that  poll  ; 
if  so,  state  that  number? 

(Objected  to  on  ground  that  the  record  as  kept  by  the  managers  is  the  only  evidence 
competent  to  prove  who  actually  voted  on  that  day.) 

A.  The  Democrats  as  I  remember  now  were  Joe  Dodd,  Julins  Dodd,  John  E.  Bryan, 
B.  G.  Willis,  T.  S.  Ackermau,  W.  H.  Nix,  P.  Gatch,  J.  B.  Glover,  F.  T.  Glover,  H.  L. 
Ackemau,  A.  E.  Griffith,  W.  F.  Hill,  H.  H.  Durant,  and  B.  M.  Williams;  I  think 
Paul  McCants.  I  am  satisfied  that  the  whites  do  not  cast  over  21  this  time  including 
the  two  colored  men.  The  total  No.  of  white  votes  in  Gloverville  is  about  (25) 
twenty-five. 

We  refer  also  to  the  poll-list,  page  628,  and  to  the  testimony  of  the 
registering  officer  of  the  county,  page  293, 

Tlie  evidence  shows  that  a  large  majority  of  the  votes  at  this  pre- 
cinct were  Republican,  and  that  not  to  exceed  21  voted  the  Democratic 
ticket.  Inasmuch  as  it  is  impossible  from  the  evidence  to  ascertain 
what  was  the  true  state  of  the  vote,  we  reject  the  returns  entirely. 
Tciking  113  from  Elliott,  and  20  from  Miller,  we  have:  Elliott,  8,245; 
Miller,  7,983.    Elliott's  majority,  262. 

Oreen  Pond. — At  this  precinct  the  returned  vote  was : 

Elliott 216 

Miller 52 

Here  we  have  another  example  of  ballot-box  stuffing. 
John  F.  Brown,  United  States  supervisor  (pages  294, 295,  296),  gives 
a  clear  statement  of  the  conduct  here,  and  we  quote : 

Q.  State  your  age,  occupation,  residence,  and  where  you  were  on  the  6th  day  of 
November,  1888. — A.  Am  about  33;  lawyer;  live  in  Green  Pond  precinct;  was  at 
Green  Pond  poll  acting  as  supervisor  on  <  lection  day  last. 

Q.  State  for  whom  you  voted  as  member  of  Congress  from  the  7th  district  on  the 
(ith  of  November,  1888?— A.  For  T.  E.  Miller. 

(Objection.) 

Q.  State  from  whom  did  you  get  your  ballot,  if  you  can  read,  and  how  many  bal- 
lots or  tickets  did  you  vote  for  Congressman  at  the  last  election. — A.  From  J.  H. 
Chapman  ;  I  can  read;  voted  one  on  that  day  for  Congress. 

(Objected.) 

Q.  State  at  what  precinct  did  you  vote,  and  if  any  one  read  your  ticket  for  you. — 
A.  Green  Pond  ;  read  ray  own  ticket. 

Q.  How  many  boxes  were  at  the  poll?— A.  Two. 

Q.  State  the  name  of  the  person  who  read  your  ticket  to  you,  and  to  what  politi- 
cal party  he  belongs. — A.  J.  H.  Chapman;  is  a  Republican. 

Q.  State  what  house  or  place  the  Federal  election  was  conducted  in,  or  any  cir- 
cumstances that  are  material  to  the  election  that  day. — A.  It  was  held  in  a  middle 
room  of  the  house,  a  room  I  took  to  be  the  dining-room,  owned  by  J.  S.  Hickmau. 
I  d.i  not  know  whether  it  was  occupied  or  not.  I  arrived  at  the  poll  about  day- 
light that  morning.  About  an  hour  and  a  half  after  I  was  there  I  saw  Mr.  Strobel. 
the  depot  ageut.  go  down  to  Mr.  Sanders's  store  ;  1  went  down  behiud  him  ;  he  called 
Mr.  Sanders,  who  opened  the  store  and  opened  a  back  room  in  the  store,  the  same  wo 
voted  in  the  election  before,  and  a  table  was  placed  in  a  position  jjs  if  the  election 
would  have  been  held  the  e.  I  was  informed  that  the  election  would  be  held  there. 
About  half  past  six  I  see  no  boxes,  neither  the  managers ;  I  felt  somewhat  uneasy  in 
regard  to  it  being  held  there.  I  saw  that  Mr.  Strobel  and  Sanders  werie  also  uneasy  ; 
I  think  either  Messrs.  Strobel  or  Sanders  told  me  the  election  would  be  held  at  San- 
ders's store.     I  noticed  Mr.  Strobel  walking  out  of  the  back  door  into  the  back  yard, 


524  MILLER   VS.    ELLIOTT. 

and  being  iuforuietl  that  the  niauajjers  were  all  at  Mr.  Hickuan'e  hoase  I  walked  out- 
of  the  front  door.  The  crowd  follow  «d  me,  Mr.  Strobel  goes  through  into  his  (S.) 
yard,  then  into  Mr.  Hickman's  yard  and  into  the  back  door  of  Mr.  Hicknian'-s  house, 
the  crov/d  and  I  following  along  the  B.  R.  track.  When  I  was  about  100  or  150  feet 
from  Mr.  Hickman's  gate  Mr.  Strobel  came  out  of  the  front  door  of  Hickraan'.s 
house  and  announced  that  the  poll  was  opened.  I  then  entered  the  building  and 
found  the  managers  .and  M.  A.  Draudy,  the  supervisor,  at  the  box ;  it  was  then  tifteen 
minutes  to  seven  by  my  time.  I  then  a.sked  the  managers  to  exhibit  the  box  before 
voting  coninienced  ;  they  announced  the  poll  had  been  opened  and  they  could  not  do 
it.  A  dispute  arose  between  the  managers  and  myfeelf  in  regards  to  the  time,  after 
which  I  asked  him  that  if  they  would  not  exhibit  the  boxes  to  give  me  the  names  of 
the  per.sons  who  had  voted.  Manager  Rice  gave  me  the  names  of  N.  V.  Robertson 
and  E.  G.  Strobel  as  persons  who  had  voted ;  I  took  a  seat  at  a  table  they  had  pre- 
pared for  me,  about  4  or  5  feet  from  the  table  on  which  the  boxes  stood.  Everything 
went  on  quietly  after  that  until  about  8  o'clock  in  the  morning,  then  Manager  Rice 
commenced  shifting  or  changing  the  boxes  around.  I  called  his  attention  to  the  fact 
that  he  ought  not  to  do  it;  he  replied  that  all  I  could  do  "Report;"  after  then  I 
said  no  more  about  the  changing  of  the  boxes.  About  10  o'clock  he  called  our  atten- 
tion to  the  fact  that  the  people  had  found  a  way  to  vote  by  a  8X)lit  on  top  of  the 
Federal  box  near  the  hole,  and  that  he  would  remedy  it ;  he  goes  over  to  Mr.  Strobel, 
borrowed  mucilage,  came  back  and  took  a  Democratic  ticket  from  the  table  and 
placed  it  on  the  split. 

Q.  Did  you  keep  a  poll-list,  and  have  you  got  it  t — A.  I  kept  a  poll-list,  and  here 
it  is. 

Q.  From  the  poll-list  you  kept  state  how  many  white  voters'  names  are  on  it. — A. 
There  are  fifteen  names  on  here  that  I  am  positive  are  white,  and  the  name  N.  V. 
Robertson,  the  first  name  given  me  and  whom  I  did  not  see  vote ;  I  don't  know  whether 
he  is  white  or  colored. 

Q.  The  persons  whose  names  appear  on  your  poll-list  other  than  N.  V.  Robertson 
and  Strobel  deposited  their  ballots  in  your  presence? — A.  They  did. 

Q.  How  many  names  have  you  on  that  poll-list  ? — A.  Two  hundred  and  sixty-eight 
(-268). 

Q.  Place  the  said  poll-list  in  evidence. 

(Paper  placed  in  evidence  purporting  to  be  the  poU-Iist  kept  by  supervisor  at 
Green  Pond,  and  attached  to  this  testimony.) 

Q.  Is  this  paper  with  the 268  names,  beginning  with  the  name  of  N.  V.  Robertson 
and  ending  with  the  name  of  James  Campbell,  and  marked  on  first  page  "Poll-list," 
the  list  of  the  voters  who  appeared  and  cast  their  ballots  at  Green  Pond  precinct,  in 
Colleton  County,  on  the  6th  of  November  last,  at  the  Federal  poll  where  you  acted 
as  U.  S.  supervisor! — A.  It  is. 

Q.  Did  you  make  this  list  of  voters  in  the  presence  of  the  managers  of  election  for 
Green  Pond  precinct  on  the  6th  of  Nov.  last,  and  is  it  the  original  and  oflScial  poll- 
list  ? — A.  This  is  the  original  list  J  made  in  the  presence  of  the  managers,  and  the 
managers  and  myself  were  very  careful  during  the  day  toseethatthetwolists  tallied, 
and  I  have  made  a  copy  of  this  poll-list  and  sent  it  to  Charleston  with  my  report  to 
the  chief  supervisor. 

Q.  State  what  was  the  condition  of  the  ballot-boxes  when  they  were  opened  after 
the  polls  were  closed,  and  how  the  tickets  or  ballots  contained  therein  compared 
with  the  poll-lists  kept  by  you  and  the  managers! — A.  When  the  boxes  were  opened 
they  were  full  of  votes ;  they  opened  the  Congressional  box  first,  and  counted  all  the 
votes  out  of  that  box  except  seventy-three  that  they  torn  up  as  being  deposited  in 
the  wrong  box,  and  placed  them  in  a  large  box,  that  is,  the  untom  ballots;  those 
placed  in  the  large  box  were  (586)  five  hundred  and  eighty-six  votes  or  ballots. 
When  they  commenced  counting  them  out  of  the  box  I  stood  near  enough  to  look 
into  the  box,  and  the  ballots  in  the  bottom  of  the  box  appeared  to  have  been  newly 
folded  and  laid  in  ;  the  rest  of  the  ballots  appeared  as  after  they  were  folded  they  had 
been  held  in  the  hands  some  time  before  they  were  voted ;  I  saw  the  names  on  some 
of  these  newly  folded  ballots  in  the  box  as  they  were  taken  out,  and  the  name  I  saw 
was  that  of  Wm.  Elliott.  They  then  commenced  to  draw  out  the  excess  ballots; 
Mr.  Blanchard  commenced  drawing,  I  noticed  him;  he  drew  from  the  top  of  this 
large  box.  After  he  was  drawing  for  some  time,  about  100  or  125,  Mr.  Rice  winked 
at  him  and  told  him  if  he  was  tired  drawing  let  him  (R.)  draw.  Mr.  Blanchard  then 
moved  away  from  the  box;  then  Rice  commenced  drawing;  I  noticed  him  in  draw- 
ing ;  he  drew  the  votes  that  were  in  the  bottom  of  the  box,  and  continued  to  draw 
until  he  drawn  out  all  the  excess  votes.  Then  they  counted  the  votes  and  gave  candi- 
dates credit  for  the  first  time.     They  gave  Wm.  Elliott  216  ;  T.  E.  Miller,  52. 

Q.  Did  you  know  or  did  you  have  any  way  of  knowing  during  the  day  how  many 
persons  at  Green  Pond  voted  for  Wm.  Elliott  for  Congress! — A.  1  know  this,  that 
when  I  went  into  the  room  in  the  morning  I  found  the  tickets  or  some  tickets  for 
Wm.  Elliott  on  the  table  by  the  Congressional  box,  and  the  Democratic  electoral 


MILLEK    VS.    ELLIOTT.  525 

tickets  by  tbe  box  for  Presidential  electors,  and  every  white  man  tbat  voted  tbe  Dem- 
ocratic ticket  that  day  in  my  presence  took  the  ticket  from  that  table,  folded  and  de- 
posited them  in  the  box,  voting  for  Wm.  Elliott  and  the  Presidential  electors,  Demo- 
crat ic. 

Q.  Will  you  take  the  poll-list  placed  in  evidence  and  state  therefrom  the  names  of 
the  white  men  who  took  the  Wm.  Elliott  tickets  from  the  tabh^  and  voted  that  day 
as  you  described? — A.  They  are  !S.  B.  Sanders,  Jas.  Gabaf!;an,  D.  J.  Chaplin,  J.  B. 
Hickman,  B.  P.  Hooker,  R.  P.  Sanders,  Wm.  Fuller,  Wm.  Sallibauk,  H.  D.  Bodiford, 
J.  P.  Slattery,  R.  B.  Grant,  C.  A.  Savage,  C.  C.  Jones.  I  have  stated  that  there  were 
IG  white  men  who  voted  at  Green  Pond,  but  on  going  over  the  list  again  I  found  that 
I  was  mistaken  ;  there  are  only  fifteen  white  men's  names  on  the  list,  and  I  do  sweax, 
to  my  knowledge,  that  fourteen  of  them  are  white,  I  do  not  know  the  fifteenth  man, 
N.  V,  Robinson,  as  I  did  not  see  him  vote. 

Q.  As  to  the  colored  voters  who  voted  there  that  day,  state  if  any  of  them  voted 
the  Elliott  ticket  and  their  names. — A.  After  I  found  the  Elliott  tickets  on  the  table 
1  sat  there  the  entire  day  to  see  whether  any  colored  voter  would  have  taken  any  of 
tlie  Elliott's  tickets  from  the  table  and  voted  it.  One  man,  John  Lessington,  came  into 
the  room  without  a  ticket ;  the  managers  asked  him  if  he  wanted  to  vote  ;  he  said  yes, 
but  had  no  ticket.  We  asked  him  then  whether  he  wanted  to  vote  a  Democrat  or 
Republican  ticket ;  he  said  he  wanted  to  vote  a  Republican  ticket ;  this  was  atter  he 
was  already  sworn  ;  the  managers  thereupon  allowed  him  to  go  out  and  get  the  Repub- 
lican ticket,  aud  he  came  back  and  voted  it.  Later  on  John  Mustipher,  a  colored  man, 
look  a  Democratic  ticket  from  the  table  and  voted  it,  and  he  is  the  only  colored  man 
that  I  saw  who  voted  the  Democratic  ticket  that  day,  that  is,  taking  it  from"  the 
table. 

The  testimony  shows  that  the  election  was  held  at  a  private  house,  a 
different  place  from  that  at  which  it  had  been  held  at  previous  elections; 
that  the  poll  was  opened  before  the  legal  hour;  that  the  managers 
of  election  refused  to  exhibit  the  inside  of  the  box  to  the  United 
States  supervisor;  that  unregistered  Democrats  were  permitted  to  vote; 
that  the  total  number  of  names  on  the  poll-list  of  those  voting  was  286, 
and  that  there  were,  at  the  close  of  the  polls,  659  ballots  in  the  Con- 
gressional box,  73  being  Presidential  tickets,  and  586  Congressional 
tickets.  Of  these,  the  73  Presidential  tickets  were  destroyed,  and  300 
ballots  were  drawu  out. 

That  these  ballots  were  placed  in  the  box  before  the  election  com- 
menced admits  of  no  reasonable  question.  They  were  so  folded  as  to 
be  easily  known.  The  managers  were  all  friends  and  partisans  of  con- 
testee.  They  resorted  to  stratagem  to  have  the  polls  declared  open 
before  the  United  States  supervisor  could  get  into  their  ])resence,  and 
so  have  an  excuse  for  not  exhibiting  the  box  to  him.  Only  2  votes  are 
claime<l  to  have  been  cast  jirevious  to  the  demand  of  tbe  supervisor  to 
have  the  box  opened.  One  of  them,  that  of  Strobel,  the  decoy,  and 
the  other,  that  ot  Robertson,  an  unregistered  voter. 

The  United  States  superv.sor  is  on  hand  an  hour  aud  a  half  before 
the  time  for  opening  the  polls.  When  the  time  approaches  he  is  told 
that  the  election  will  be  held  at  Saunders's  store,  the  usual  place;  Stro- 
bel goes  to  the  store,  opens  the  door,  places  a  table  in  position  for  the 
boxes,  and  arranges  things  preparatory  for  the  election;  he  then  steps 
out  through  the  back  door,  into  a  back  yard,  and  then  into  the  back 
door  of  Hickman's  house,  where  the  election  was  actually  held.  The  su- 
pervisor, on  the  watch  for  tricks,  follows  as  last  as  possible,  followed 
oy  the  voters;  before  he  reaches  Hickman's,  Strobel  comes  out  of  the 
front  door  and  announces  that  the  polls  are  open,  and  the  election  man- 
agers announce  that  Strobel  aud  Robertson  have  voted.  All  of  the 
election  managers,  the  clerks,  and  the  marshals,  all  Democrats,  went  to 
the  polling  place  the  night  before,  and  remained  in  Hickman's  house 
over  night. 

The  managers  of  the  election  were  called  as  witnesses,  and  while 
claiming  that  the  box  was  exhibited  to  the  voters  present  they  conlirm 


52 G  MILLER   VS.    ELLIOTT. 

fully  the  testimony  of  Brown.  The  "  voters  present"  were  these  Dem- 
ocratic election  officers,  who  no  doubt  did  exhibit  the  box  to  each  otber. 
The  action  here  is  almost  identical  with  that  at  GloverviUe.  In  ad- 
dition to  tbe  testimony  ot  Brown,  the  supei  visor,  contestant  introduced 
Singleton  (p.  92),  Scott  (p.  94),  Myers  (p.  284),  and  two  hundred  and 
thirty-three  others,  whose  testimony  may  be  found  on  pages  91  to  93 
and  i62  to  285,  from  which  it  clearly  appears  that  Miller  received  252 
votes  at  this  precinct  and  Elliott  but  16.  Kestating  the  vote  accord- 
ing to  the  facts  we  have  up  to  this  point : 

Elliott 8,245—200=8,045 

Miller w. 7,98:5+200=8,183 

Miller's  majority 138 

Jacksonboro  Precinct. — The  returns  from  this  precinct  gave — 

Elliott 68 

Miller 45 

Total 113 

An  excess  of  70  ballots  at  this  poll  was  destroyed  by  the  managers. 
Here  the  ballot-box  was  not  stuifed,  but  what  was  the  equivalent  of 
ballot-box  stuffing  was  done.  The  managers  emptied  the  box  on  the 
heads  of  some  barrels  standing  behind  the  counter,  where  the  super- 
visor had  not  been  permitted  to  go  during  the  day.  The  extra  ballots 
were  undoubtedly  on  the  heads  of  these  barrels.  When  the  count  was 
made  it  was  found  that  there  was  an  excess  of  70  ballots  in  a  poll  of 
113.  Under  pretense  of  complying  with  the  law  these  70  extra  ballots 
were  eliminated  by  the  usual  method.  Such  method  of  disposing  of 
extia  ballots  is  provided  for  mistakes,  and  not  for  frauds.  We  quote 
the  testimony  of  the  supervisor,  L.  D.  Smalls  (page  116),  who,  after  the 
usual  preliminary  questions,  says : 

Q.  What  official  position  did  yon  hold  in  connection  with  the  election,  if  any? — A. 
United  Slates  supervisor. 

Q.  Where  were  yon  during  the  day  of  election ;  that  is,  on  tbe  6th  day  of  last  No- 
vember ?— A.  I  was  in  B.  Sauder's  building,  wliere  the  election  was  held  for  Congress- 
man from  the  7th  district  and  Presidential  electors. 

Q.  State  how  many  boxes  were  in  said  building  and  where  they  were  placed  during 
said  day. — A.  There  were  two  boxes  situated  on  a  counter;  the  bos  for  Presidential 
electors  was  on  the  lei  t  of  any  one  coming  in  the  door  with  his  face  to  the  boxes,  and 
the  box  for  Congressman  was  on  the  righ'. 

Q.  Who  was  the  oher  U.  S.  sniicrvisor  for  Jacksonboro'? — A.  C.  W.  Butler. 

Q.  Didyou  keep  a  poll-list  of  those  who  voted  on  said  day  at  said  election? — A.  I 
did,  and  1  now  have  it  with  me. 

Q.  Please  produce  it  and  place  it  in  evidence. 

(Objecled  to  on  the  ground  that  the  law  does  not  require  the  U.  S.  supervisor  of 
electiou  to  keep  a  poll  list.) 

A.  Poll-lisr,  marked  with  Maj.  Howell's  initials,  placed  in  evidence  [marked  Ex- 
hibit A]. 

Q.  How  many  names  are  there  on  said  poll-list  ? — A.  113. 

Q.  Were  yon  present  when  the  votes  were  canvassed  at  the  close  of  the  election  ? — 
A.  Yes,  sir. 

Q.  Were  there  as  many  votes  or  more  votes  in  the  Congressional  box  than  there 
were  names  on  the  poll-list  at  said  count? — A.  Yes;  there  were  seventy  (70)  more 
ballots  in  the  box  than  there  were  names  on  the  poll-list. 

Q.  Do  you  know  how  the  seventy  (70)  extra  votes  got  in  said  box? — A.  I  do  not. 

Q.  Was  there  any  difference  between  the  paper  on  which  the  name  of  T.  E.  Miller 
was  printed  and  the  paper  on  which  the  name  of  William  Elliott  was  printed? — A. 
No,  sir;  but  in  the  priming  the  words  on  the  Miller  ticket  were  far  apart  and  on  the 
Elliott  ticket  they  were  close  together. 

Q.  Where  were  the  boxes  and  votes  placed  during  the  count? — A.  After  they  com- 
menced to  count  there  were  two  barrels  behind  the  counter,  and  they  emptied  all  the 
votes  on  the  barrel  heads  and  commenced  to  count  from  there. 


MILLER   VS.   ELLIOTT.  527 

Q.  How  far  were  the  barrels  from  the  counter  where  the  boxes  were  dnriug  the 
day?— A.  About  three  (3)  feet  from  the  counter. 

Q.  How  wide  was  the  counter  ? — A.  About  two  feet  and  a  half  wide. 

Q.  Were  you  behind  the  counter  during  the  day  t — A.  No ;  I  was  on  the  opposite 
side  from  the  barrel  all  day. 

Q.  Did  you  ask  permission  to  go  behind  the  counter  during  the  count? — ^A.  Yes,  I 
did;  but  the  managers  objected  to  my  doing  so. 

Cross-X : 

Q.  Could  you  see  all  that  was  going  on  during  the  count  ? — A.  I  could  see  the  count- 
ing, but  could  not  see  the  names  on  the  tickets. 

Q.  How  far  were  you  from  the  managers  while  the  count  was  going  on? — A.  I  was 
about  five  feet  from  the  managers  during  the  count. 

Q.  Were  you  present  when  the  result  of  the  election  was  declared  ? — A.  Yes,  sir. 

Q.  Did  you  sign  the  Federal  supervisor's  return  ? — A.  I  signed  it  under  protest. 

Q,  Were  you  torcfcd  to  sign  it ;  did  any  say  that  you  had  to  sign  it  ? — A.  Yes,  sir; 
L.  B.  Ackeriiian,  one  of  the  managers  at  said  election,  said  I  must  sign  the  return, 
that  the  law  required  it,  and  I  told  him  I  had  not  seen  the  names  on  the  tickets  as 
they  were  being  counted,  and  Mr.  Butler  said  I  could  sign  and  say  that  1  signed  under 
protest.  (Mr.  Butler  was  the  Democratic  supervisor.)  A  man  by  the  name  of  Sim- 
mons, a  State  constable,  when  I  said  to  Mr.  Ackerraan  that  I  could  not  see  the  names 
on  the  tickets,  said,  "Go  on  with  the  count,  and  if  this  damn  supervisor  says  much 
I  will  put  him  in  jail."    For  that  reason  I  said  no  more. 

Q.  Did  you  say  that  you  could  read  and  write? — A.  Yes,  I  can. 

Q.  Were  you  not  furnished  with  the  law  informing  you  of  the  duties  of  the  super- 
visor?— A.  Yes,  sir. 

Q.  Did  you  read  them  ? — A.  Yes,  I  read  them,  and  called  the  managers'  attention 
to  them,  loo. 

Q.  What  were  your  duties?—  A.  My  duty  was  to  keep  a  strict  notice  and  see  that 
no  violation  of  law  while  in  counting  the  votes. 

Q.  D.d  you  make  any  report  to  the  chief  supervisor  of  any  wrong  that  took  place 
under  your  observation  during  the  day  of  the  election  ? — A.  I  did  make  a  report  to 
the  supervisoiv  but  not  informing  him  of  the  wrong. 

Q.  Then  your  report  to  the  supervisor  was  the  same  as  the  managers  of  election  ? — 
A.  Yes. 

Q.  Did  you  have  a  full  turn-out  of  the  Republican  voters  of  this  poll  on  the  day  of 
the  election  ? — A.  Not  as  general. 

The  validity  of  the  count  and  return  having  been  destroyed  each 
party  is  left  to  prove  his  own  vote,  so  far  as  he  is  able.  Contestant 
proves  by  calling  the  voters  (pp.  97-124)  that  67  of  them,  whose  names 
all  appear  on  the  poll  list,  voted  for  him.  Under  a  strict  rule  of  law 
the  whole  return  would  be  rejected,  and  67  votes  allowed  to  contestant 
on  the  proof.  In  his  original  brief  filed  with  the  committee,  contestant 
conceded  to  contestee  46  votes,  the  remainder  of  the  113  not  proven 
to  have  voted  for  contestant ;  and  for  that  reason,  and  because  it  is 
now  only  a  question  of  the  amount  of  contestant's  majority,  we  state 
the  vote  as  in  this  brief: 

Elliott's  vote  by  last  statement 8,045 

Deduct  dift'erence  between  vote  as  returned,  and  as  stated  in  brief 22 

And  we  have  for  Elliott 8,023 

Add  22  to  Miller  (8183  +  22) 8,205 

Millers  majority 182 

Counting  the  vote  according  to  the  strict  rule  of  law,  under  the  evi- 
dence, would  make  Miller's  majority  228. 

BKA.t«rORT  COUNTY. 

Port  Boyal. — The  returns  from  Port  Eoyal  are : 

Elliott 199 

Miller 14 

Total 213 


528  MILLEK    VS.    ELLIOTT. 

Fifty-one  witnesses  (pp.  128-160)  testify  that  they  voted  for  Miller, 
and  their  names  are  all  on  the  poll  list  as  having  voted.  This  evidence 
stands  uncontradicted.  Duly  qualified  voters  were  refused  i^ermission 
to  vote,  and  names  of  Democrats  are  on  the  poll-list  as  having  voted 
who  had  moved  away,  and  were  not  present  at  the  election,  thus  fur- 
ther discrediting  the  returns. 

Giving  Miller  the  37  votes  proved  and  not  credited,  and  deducting 
a  like  number  from  the  199  returned  for  Elliott,  as  the  vote  is  stated  in 
contestant's  original  argument,  and  we  have: 

Elliott 802:i  — 37=7986 

Miller 8205  +  37  =  8242 

Miller's  majority 256 

Counting,  according  to  the  strict  rule  of  law,  only  such  votes  as  are 
proven  by  the  evidence,  Miller's  majority  would  be  464! 

BERKELEY  COUNTY. 

St.  Stephen^: — The  poll-list  of  St.  Stephen's  shows  that  310  persons 
voted.  Only  285  are  returned  as  voting  for  Representative  in  Congress, 
and  a  like  number  for  Presidential  electors  (pp.  600,  602,  603). 

It  is  evident  that  25  votes  have  been  lost  here  by  being  deposited  in 
the  wrong  box.  Eighty-one  qualified  voters,  whose  names  appear  on 
the  poll-list,  testify  that  they  voted  for  Miller  (pp.  52-68  and  74-86). 
No  attempt  is  made  to  sustain  this  return,  and,  under  the  evidence, 
Miller  is  entitled  to  be  credited  with  81  votes,  or  75  more  than  were 
given  him  in  the  returns.  Deducting  75  from  Elliott's  vote,  according 
to  the  statement  in  contestant's  brief,  we  have : 

Elliott 7986-75  =  7911 

Miller 8245-f 75  =  8317 

Miller's  majority 406 

Following  the  strict  rule  of  law,  and  allowing  only  the  vote  proven 
after  rejecting  the  returns,  makes  Miller's  majority  818. 

ORANGKBURGH  COUNTY. 

Evans's  Mill  precinct. — At  Evans's  Mill  the  managers  return  415  votes 
cast,  credting  Elliott  with  390  and  Miller  with  25. 

According  to  the  testimony  for  contestant  there  were  over  100  more 
ballots  in  the  box  than  names  on  the  poll-list. 

The  testimony  of  T.  T.  Green  (p.  316)  shows  that  the  box  had  been 
stuffed  by  the  managers  or  some  other  person.  The  managers  were  all 
partisan  friends  of  contestee.  According  to  Green's  testimony  the  man- 
agers knew  without  counting  that  there  was  an  excess  of  tickets,  for 
they  immediately  destroyed  125,  and  then,  upon  counting  the  remainder, 
found  that  they  had  destroyed  7  too  many.  To  restore  the  7  which  were 
necessary  to  make  up  the  full  vote,  7  each  of  Democratic  and  Republican 
tickets  were  put  into  a  box,  and  7  of  these  14  were  drawn  out  and  put 
with  the  other  tickets. 

The  managers  of  the  election  are  called,  and  acknowledge  the  destruc- 
tion of  some  tickets,  and  the  unlawful  method  of  making  up  the  defi- 
ciency after  too  m«ny  were  destroyed,  but  deny  that  there  were  so 
many  as  stated  by  Green  ;  upon  this  question  there  is  a  conflict,  but 
upon  another  there  is  not.  One  hundred  and  forty-two  of  the  voters, 
whose  names  all  appear  on  the  poll-list,  were  called  as  witnesses  (pp. 


MILLER   VS.    ELLIOTT.  529 

414-476)  and  136  of  tbera  testify  tohaving  voted  for  Miller,  conclusively 
proving  the  falsity  of  the  return  and  the  fraud  perpetrated  by  the 
managers.  This  would  give  Miller  111  more  than  are  credited  to  him, 
and  conceding  to  Elliott  the  remainder  of  the  votes  cast  in  accordance 
with  contestant's  brief  we  have : 

Elliott 7911—111=7800 

Miller 8317+111=8428 

Miller's  majority C28 

Or,  rejecting  the  fraudulent  return,  and  counting  only  the  votes 
proven,  and  we  have  Miller's  majority  1,319. 

KICHLAND   COUNTY. 

Eastover  precinct. — No  returns  were  made  from  this  precinct,  and  it 
was  not  included  in  the  certified  result.  M.  Johnson,  the  Republican 
supervisor,  testifies  (p.  319),  that  the  Miller  tickets  were  printed  on 
coarser  and  darker  paper  than  the  Elliott  tickets,  and  that  when  folded 
by  the  ticket  distributors,  Miller's  name  could  be  seen ;  that  the  name 
was  printed  in  larger  letters  than  Elliott's  name;  that  he  watched  the 
voting  and  kept  a  tally  of  the  voters,  and  that  Miller's  vote  was  not  less 
than  248,  nor  more  than  257  (some  tickets  not  certain),  and  that  Elliott's 
vote  was  from  83  to  92.  The  managers  shifted  the  boxes  two  or  three 
times,  and  in  doing  so  removed  them  from  the  sight  of  the  supervisor, 
to  which  he  objected ;  and  he  believes  other  boxes  were  substituted  at 
one  of  thes"  shiftings. 

H.  W.  Woodard  (321)  testifies  to  folding  the  Miller  tickets  so  that 
the  name  was  in  sight  and  to  the  description  of  the  tickets,  the  same  as 
Johnson. 

One  hundred  and  ninety-seven  colored  voters  testify  to  having  voted 
for  Miller  (pp.  478-570).  Forty-two  afiidavits  of  other  voters  were  filed 
with  the  committee  to  the  same  effect.  These  voters'  names  are  all  on 
the  poll-list  kept  by  the  supervisor,  showing  385  votes  cast,  298  by  col- 
ored men,  11  of  which  were  Democratic.  Aside  from  the  testimony  of 
the  supervisor,  which  shows  pains-taking  care,  there  is  positive  testi- 
mony taken  in  due  process  of  law,  of  197  voters  who  cast  their  ballots 
for  Miller.  As  we  have  said,  no  return  for  this  precinct  ever  reached 
the  county  board. 

J.  C.  Easou  (332),  the  Democratic  supervisor,  confirms  Johnson  as  to 
the  managers  shifting  the  boxes,  as  to  the  whole  number  of  votes 
cast,  and  as  to  Johnson's  keeping  a  poll-list,  and  as  to  his  being  present, 
all  the  time,  and  in  a  position  to  see  each  vote  when  deposited.  He  also 
says  that  the  colored  voters  in  this  district  largely  preponderate,  at  least 
two  to  one,  and  that  when  the  colored  men  vote  they  mostly  vote  the  Re- 
publican ticket.  He  did  not  keep  a  tally  when  the  vote  was  counted,  did 
not  keep  a  poll-list,  did  not  watch  the  tally  nor  notice  the  names  on  the 
tickets  when  they  were  being  counted ;  in  other  words,  did  nothing  that 
was  required  of  him  as  a  supervisor,  but,  after  the  managers  had  made 
up  their  return,  he  took  the  tally  and  made  his  return  from  that,  without 
any  knowledge  whether  it  was  right  or  wrong.  According  to  his  report 
the  vote  was : 

Elliott 262 

Miller 87 

Simmons 36 

Total : 385 

H.  Mi;5.  137 34 


530  MILLER   VS.    ELLIOTT. 

The  commissiouer  of  elections  says  that  no  return  was  made,  but  that 
an  unsigned  statement  was  found  in  the  box  returned,  which  was  not 
counted.  This  statement  was  sent  to  the  secretarj^  of  state,  witli  all 
the  papers  except  ballots,  which  he  did  not  consider  it  his  duty  to 
count. 

C.  U.  Marshall  (335)  testifies  to  the'same  vote  as  that  given  by  the 
Democratic  supervisor. 

Says  ho  made  out  the  return  on  the  back  of  an  envelope,  put  it  in  his 
pocket,  and  has  kept  it  there  ever  since.  He  testifies  to  destroying 
some  votes,  and  then  having  as  many  left  as  there  were  names  on  the 
poll-list.  We  give  some  extracts  from  his  testimony,  illustrating  his 
idea  of  an  honest  election : 

Q.  For  what  purpose  were  these  boxes  transposed  and  in  what  manner  t — A.  When 
we  made  the  first  change  Meshoch  Johnson,  the  Republican  supervisor,  spoke  to  a 
voter  and  told  him  to  tell  them  outside  about  the  position  of  the  boxes.  I  called  his 
attention  to  the  State  law  forbidding  any  one  to  speak  to  voters.  He  then  got  to 
sending  notes  out  by  voters,  trying  to  give  them  to  voters  surreptitiously.  The  boxes 
were  changed  several  times  in  consequence  of  this  U.  S.  supervisor  trying  to  defeat 
the  election  laws,  thus  trying  to  give  his  party  an  undue  advantage. 

Q.  In  making  these  shiftings  or  transpositions  of  the  boxes  how  much  time  was 
reqnired  to  do  so? — A.  It  was  instantaneously.  Often  we  would  say  aloud,  "Let's 
change  position  of  these  boxes." 

•  *  «  4^  •  •  « 

Q.  Did  you  reside  in  the  7th  Congressional  district  at  the  time  of  the  election 
spoken  of? — A.  No,  sir;  on  the  edge  of  it. 

Q.  Did  you  ever  live  there  ? — A.  No ;  a  road  divides  me. 

Q.  How  far  is  your  residence  from  Eastover  ? — A.  It  was  20  miles. 

Q.  Who  were  the  other  managers  of  election  with  you  ? — A.  W.  S.  Taylor  and  J.  E. 
Touch  beriy. 

Q.  You  were  all  Democrats  ? — A.  I  think  so. 

Q.  What  concern  was  it  of  yours  as  a  manager  of  election  if  one  of  the  super- 
visors did  write  notes  to  persons  outside  of  the  room  ? — A.  If  as  an  officer  he  had  the 
right  as  a  partisan  in  the  interest  of  his  own  party,  I  think  I  had  aright  to  upset  his 
plans  and  transposed  the  boxes. 

Q.  Was  it  your  place  as  a  sworn  officer  of  the  election  to  make  yourself  a  partisan 
for  the  purpose  of  counteracting  the  partisan  action  of  any  one  else  ? — A.  No ;  trans- 
posing boxes  affected  both  parties ;  there  were  many  negroes  who  couldn't  read  that 
voted  the  Democratic  ticket.  The  law  requires  the  managers  to  read  to  the  elector 
when  he  goes  to  vote  the  name  on  the  box  if  he  demands  it.  On  one  or  more  occa- 
sions during  that  day  I  was  called  upon  to  read  them,  and  did  so  for  the  voter,  and 
nobody  else  was  allowed  to  give  any  information. 

Q,  If  the  changing  of  boxes  would  make  no  difference  in  the  relative  vote  of  the 
parties,  why  did  you  transpose  them  for  the  purpose  of  antagonizing  the  Republican 
supervisor  ? — A.  It  was  a  matter — a  byplay  between,  and  we  made  it  a  matter  of  joke. 

Dealing  with  this  vote  in  the  manner  most  liberal  to  contestee,  the 
least  we  can  give  Miller  is  239,  and  the  most  we  can  give  Elliott  is  110. 

Elliott 7800+110=7910 

Miller jt 8428+239=8667 

Miller's  majority 757 

Or  by  the  count  made  by  the  strict  construction  of  the  law,  Miller's 
majority  is  1,448. 

BERKELEY  COXJNTY. 

Ben  Potter  precinct — In  this  precinct  there  is  a  difference  between 
the  return  of  the  United  States  supervisors  and  that  of  the  precinct 
managers;  the  supervisors  returning  41  as  voting,  and  the  managers 
141.  The  evidence  here  is  conflicting,  and  we  do  not  find  it  necessary 
to  decide  which  is  the  true  return.  The  same  is  true  of  Privateer  pre- 
cinct, Sumter  County,  where  Elliott  is  returned  by  the  managers  as  re- 
ceiving 130  votes,  and  by  the  supervisors  as  receiving  88. 


MILLER    VS.    ELLIOTT.  531 

Cooper^s  Store  precinot. — Here  the  managers  counted  94  for  Miller 
and  96  for  Elliott.  The  evidence  satisfies  us  that  the  count  was  a  gross 
fraud  boldly  perpetrated,  by  which  a  large  number  of  Miller  tickets 
were  counted  and  tallied  for  Elliott  by  the  managers  of  the  election,  but 
it  is  impossible  to  ascertain  the  amount  of  the  fraud  from  the  evidence 
and  we  can  only  reject  the  whole  return,  which  only  changes  the  result 
two  votes. 

Other  allegations  are  made,  and  proof  taken  in  regard  to  them,  such 
as  failing  to  hold  election  at  large  Eepublican  precincts,  etc.,  but  we  do 
not  deem  it  nesessary  to  make  further  comment  on  the  record.  The 
frauds,  false  returns,  and  ballot-box  stuflBng  which  we  have  detailed 
are  so  conclusively  proven,  and  the  true  vote  so  well  established  in  the 
various  precincts  noticed,  that  there  is  left  no  room  to  doubt  that 
Thomas  E.  Miller  was  legally  elected,  and  was,  through  the  crimes  of 
election  managers  in  the  Seventh  district  of  South  Carolina,  deprived 
of  a  certificate  of  election.  We  therefore  recommend  the  adoption  of 
the  following  resolutions : 

Mesolved,  That  William  Elliott  was  not  elected  a  Eepresentative  in 
the  Fifty-first  Congress  from  the  Seventh  Congressional  district  of 
South  Carolina,  and  is  not  entitled  to  retain  a  seat  therein. 

Resolved,  That  Thomas  E.  Miller  was  duly  elected  a  Eepresentative  in 
the  Fifty-first  Congress  from  the  Seventh  Congressional  district  of 
South  Carolina,  and  is  entitled  to  his  seat  as  such  Eepresentative. 


VIEWS  OF  THE  MINORITY. 


(1)  Registration  and  election  law. 

The  registration  and  election  laws  of  South  Carolina  are  reasonable 
and  constitutional,  and  there  is  nothing  in  the  evidence  to  sustain  the 
conclusion  of  the  committee  that  they  are  executed  in  an  unfair  or  par- 
tisan manner. 

(2)  Shifting  of  ballot  boxes  justifiable. 

The  section  of  the  election  law  which  provides  for  a  number  of  ballot 
boxes  plainly  labeled  for  the  different  oflQces,  and  requires  that  the  voter 
shall  be  separated  from  others,  and  not  spoken  to  by  anyone  except 
the  judges  while  at  the  polling  i)lace  depositing  his  vote,  is  well  calcu- 
lated to  carry  out  the  provision  of  the  constitution  that  the  voter  shall 
be  protected  from  "An  undue  influence  from  power,  bribery,  tumult,  or 
improper  conduct"  and  to  protect  him  in  his  right  to  a  secret  ballot. 
If  the  voters  were  found  to  be  receiving  information  from  outsiders 
which  they  were  required  to  receive  from  the  judges,  "If  the  wise  pro- 
visions of  this  law  were  being  interfered  with,  and  rendered  nugatory 
by  any  outsider  at  any  poll,  or  if  it  came  under  the  observation  of  those 
selected  to  supervise  the  execution  of  this  law  that  its  letter  or  inten- 
tion or  spirit  was  being  violated,  we  submit  it  was  the  duty  of  the  man- 
agers to  shift  the  boxes,  or  perform  any  other  legal  act,  to  subserve  its 
proper  execution." 

(3)  The  evidence  relied  on  by  the  committee  to  establish  the  true  vote 
in  the  boxes  alleged  to  have  been  stuffed  is  untrustworthy  and  insuf- 
ficient, and  in  some  cases  incompetent. 

633 


VIEWS  OF  THE  MINORITY. 


July  1, 1890. — ^Mr.  Wilson,  of  Missouri,  from  the  Committee  on  Elec- 
tions, submitted  the  following  as  the  views  of  the  minority : 

The  undersigned,  minority  of  the  Committee  on  Elections,  being  un- 
able to  aeree  with  the  majority  of  the  committee  in  their  conclusions 
in  this  case,  disseut  therefrom,  and  present  the  following  views. 

At  the  general  election  in  South  Carolina  for  President  and  members 
of  Congress  on  the  Cth  day  of  I^ovember,  1888,  William  Elliott  was 
the  Democratic,  and  Thomas  E.  Miller  was  the  Eepublican  candidate 
for  Representative  in  Congress  from  the  seventh  district  in  that  State, 
and  the  former  was  declared  elected,  having  received  1,353  more  votes 
than  Miller,  and  having  been  granted  the  certificate  of  election  now 
represents  that  district  in  the  House  of  Kepresentatives.  The  counties 
comprising  that  district,  and  the  number  of  votes  cast  for  each  of  the 
candidates,  appears  in  the  following  table :  • 

Election  returns,  seventh  Congressional  district. 


Coanties. 


William 
Elliott. 


Thomas  E. 
Miller. 


Kobert 
Simmous. 


Beaufort 

Berkeley 

Charleston 

Colleton 

Georgetown  . . . 
Oranjieburgh.. 

Kicbland 

Siunter 

Wiiliamsbargh 


1,753 

45 

652 

821 

987 

367 

1,782 

1,053 


8,358 


2,056 
1,547 
143 
210 
957 
310 
222 
933 
624 


7,003 


54 


74 


The  first  of  the  many  errors  contained  iu  the  report  of  the  majority 
of  the  committee  are  found  in  the  following  statement  on  page  2  : 

Au  examination  of  the  descriptiou  of  the  district  in  the  Congressional  Directory 
will  show  that  its  contiguity  is  secured  by  putting  into  it  the  sea  beach  of  Charleston 
County,  a  strip  of  sand  a  few  feet  wide  and  many  miles  long,  covered  half  of  every 
day  by  the  waters  of  the  Atlantic  Ocean  and  incapable  of  human  habitation.  All  the 
habitable  main-land  of  this  county  is  in  another  district. 

As  to  the  point  of  contiguity  an  examination  of  the  map  will  show 
that  all  the  land  on  the  south  side  of  Charleston  harbor,  consisting 
chiefly  oF  James  Island,  is  in  the  seventh  district,  while  directly  op- 
posite, on  the  northern  side  of  the  harbor,  lies  Berkeley  County,  all  of 
which,  excepting  the  village  of  Mount  Pleasant,  is  in  that  district.  With 

535 


536 


MILLER   VS.    ELLIOTT. 


equal  force  might  the  majority  claim  that  each  of  the  many  navigable 
rivers  flowing  through  the  district  destroys  its  contiguity. 

More  striking  is  the  error  of  the  majority  as  to  none  of  the  "  habita- 
ble" part  of  Charleston  County  being  in  the  seventh  district.  Imme- 
diately before  this  assertion  appears  a  statement  of  the  vote  in  the  last 
election,  and  we  find  the  following : 


County. 

William 
EIRott. 

Thomas  E. 
Miller. 

45 

143 

ELECTION  BY  CENSUS. 

In  proceeding  to  elect  the  contestant  by  the  census  the  majority  gives 
the  population  and  voting  strength  of  the  district  in  1880,  and  making 
out  a  colored  majority  of  25,000  votes,  say : 

It  is  therefoie  safe  to  say,  unless  the  mass  of  colored  voters  have  ceased  to  take  an 
interest  in  political  matters,  that  with  laws  bearing  equally  on  white  and  black,  and 
with  anything  like  a  fair  election,  the  Republicans  of  the  seventh  district  would  poll 
four  times  as  many  vot«8  as  the  Democrats,  and  would  have  anywhere  from  15,000  to 
20,000  majority.   - 

The  history  of  the  district  as  it  has  come  before  former  Congresses,  and  as  it  is  pre- 
sented in  this  record,  precludes  the  belief  that  its  colored  men  have  to  any  consider- 
able extent  ceased  to  be  interested  in  elections,  especially  Presidential  and  Con- 
gressional elections. 

Apart  trora  the  otherwise  well-established  fact  that  "the  mass  of 
colored  voters  have  ceased  to  take  an  interest  in  political  matters,"  the 
census,  in  connection  with  the  vote  in  this  case,  gives  irresistible  force 
to  that  conclusion.  Take  Georgetown  County,  for  example.  The  census 
gives: 

Population  and  number  of  males  of  voting  age  classified  hy  race  according  to  census  of 

1880. 


County. 

Total. 

White. 

Colored. 

Males  21  years  of 
age  and  over. 

White. 

Colored. 

10, 613 

3,466 

16, 147 

852 

3,449 

The  vote  was  as  follows; 


County. 


Elliott. 


Miller. 


Total. 


Georgetown. 
Not  voting. . 


821 


957 


Total  voting  population. 


1,778 
2.523 


4,301 


Now,  in  contestant's  notice  of  contest  Georgetown  is  not  mentioned. 
There  is  no  complaint  that  the  supervisor  of  registration  neglected  or 
refused  to  register  any  applicant,  nor  that  the  managers  of  election,  one 
of  whom  was  a  Republican  at  each  precinct,  refused  any  one  the  right 
to  vote,  and  yet  we  find  that  out  of  4,301  persons  of  voting  age,  in  a 
county  where  there  are  five  times  as  many  colored  as  white  people,  no 
less  than  2,523  failed  to  vote.    No  explanation  can  be  given  of  this  ex- 


MILLER    VS.    ELLIOTT.  537 

traordinary  result  except  that  the  mass  of  colored  voters  have  ceased 
to  take  an'interestiu  political  matters. 

In  addition  to  this  there  is  abundant  proof  throughout  the  testimony 
that  colored  men  voted  for  contestee. 

As  to  the  table  of  population  and  men  of  voting  age  given  by  the 
majority,  a  careful  examination  of  the  books  of  the  last  census  fails  to 
disclose  any  such  table. 

THE  ELECTION  LAW. 

In  speaking  of  the  election  and  registration  of  South  Carolina,  the 
majority  say — 

That  this  law  was  eu acted  for  the  deliberate  purpose  of  indirectly  disfranchising, 
so  far  as  possible,  the  colored  voters  of  the  State,  admits  of  no  serious  question. 

We  deny  the  allegation,  and  on  our  part  allege  that  there  is  nothing 
in  the  law  itself,  nor  in  the  evidence  in  the  case  from  beginning  to  end, 
to  justify  it.  Let  it  be  remembered  in  this  connection  that  the  consti- 
tution of  that  State  was  framed  by  a  Republican  convention  in  1868; 
that  it  required  the  legislature  to  enact  a  registration  law,  which  the 
Republicans  of  that  State  for  more  than  five  years  prior  to  their  being 
driven  from  power  in  1876  by  the  honest  people  of  that  Commonwealth, 
irrespective  of  party,  utterly  refused  to  pass,  because,  we  presume,  it 
would  be  an  obstacle  in  the  way  to  retention  of  power  and  the  further 
wrecking  of  the  State. 

THE  LAW  CONSTITUTIONAL. 

It  is  also  held  by  the  majority  of  the  committee  that  "  there  is  no  valid 
registration  law  in  South  Carolina;"  that  the  said  laws  are  unconstitu- 
tional for  various  reasons  stated  in  their  report,  and  in  support  of  this 
theory  substantially  alleges:  (1)  That  as  the  letter  of  the  law  prescribes 
but  one  time  for  a  qualified  voter  to  register,  he  is  disfranchised  if  he 
fails  to  obey  the  law ;  and  the  like  is  the  case  as  to  minors  coming  of 
age,  and  others  afterwards  becoming  qualified  voters,  and  who  decline 
to  obey  the  law  as  to  the  time  required  to  register. 

Now,  a  sufficient  answer  to  all  this,  so  far  as  the  determination  of  this 
case  is  concerned,  is  that  section  105  of  the  Revised  Statutes  requires 
the  contestant  to  give  notice  of  contest  and  "shall  specify  particularly 
the  grounds  upon  which  he  relies  in  the  contest."  It  has  been  deter- 
mined over  and  over  again  that  no  point  not  made  in  the  notice  can  be 
considered  by  the  House.  No  such  ground  was  specified,  and  it  can 
not  now  be  relied  on,  and  its  introduction  here  does  but  encumber  the 
record  and  is  wholly  irrelevant. 

It  may  further  be  answered  that  in  the  evidence  taken  herein  there 
is  no  proof  that  this  law  was  acted  upon  in  the  strict  interpretation 
given,  and  therefore  there  is  no  proof  that  this  requirement  lost  to  either 
party  a  single  vote. 

The  majority  of  the  committee  can  hardly  be  serious  in  its  declara- 
tion that  the  law  is  unconstitutional  because  it  affixes  "  a  like  penalty 
for  parting  with  or  destroying  a  registration  certificate  ; "  the  law  car- 
ries upon  its  face  a  sufficient  refutation  of  the  charge,  if  seriously  made. 
The  majority  say : 

But  they  give  such  latitude  to  the  supervisor  of  registration  as  will  enable  him  to 
take  good  care  that  none  of  his  political  friends  shall  suffer  the  penalty. 

The  implication  contained  in  this  paragraph  is  altogether  gratuitous, 
and  as  such  we  dismiss  it. 


538  MILLER   VS.    ELLIOTT. 


OBSTRUCTION  TO  REGISTRATION. 

Under  tliis  head  the  majority  says : 

In  many  counties  a  diligent  search  on  the  part  of  Republicans  fails  to  discover  the 
supervisor's  office,  or,  when  it  is  found,  so  many  hindrances  and  obstructions  are  in- 
terposed that  voters  fail  to  get  transfers  or  registry,  although  they  apply  at  every 
opportunity,  during  every  month  of  registration  in  the  year  of  a  general  election.  In 
some  large  precincts  no  one  has  been  able  to  secure  a  transfer  since  the  general  registry 
in  1882. 

We  challenge  contradiction  of  the  assertion  that  in  no  county  but 
Colleton  is  any  charge  made  by  the  testimony  that  the  supervisor's 
office  could  not  be  found.  As  to  that  county,  the  majority  cite  the  tes- 
timony of  N.  F.  Myers  (p.  95),  I.  H.  Chapman  (p.  92),  and  W.  B.  Scott 
(p.  94). 

Myers  says: 

I  inquired  at  the  offices  located  in  the  court-house,  but  none  could  or  would  say 
where  he  was  located,  excepting  Auditor  Smith,  who  said  he  (meaning  the  supervisor) 
came  into  his  (Smith's)  office,  but  he  could  not  tell  me  if  he  had  a  permanent  office. 

It  will  be  noted  that  Myers  did  find  the  office,  but  was  not  satisfied 
unless  it  was  a  "permanent"  one.  He  does  not  claim  to  have  gone  on 
any  day  fixed  by  law  for  the  supervisor  to  be  at  his  office,  and  hence 
did  not  find  him. 

W.  B.  Scott  says: 

I  went  there  the  first  Monday  in  last  March,  and  as  I  went  I  took  my  registration 
certificate  with  me  to  see  whether  I  could  get  it  changed  from  Jacksonboro  to  Green 
Pond,  and  as  I  went  up  I  ask  Jackson  Grant  what  time  the  supervisor  will  be  in  and 
whereabout  he  held  his  office;  he  told  me  to  go  to  the  conrt-house  and  I  would  find 
out,  and  I  went  over  and  saw  the  auditor;  Mr.  Smith  told  me  where  the  office  of  the 
supervisor  was;  he  said  sometimes  he  comes  in  here,  and  moreover  I  have  not  time  to 
l)other  with  you.  Then  I  came  on  back  home  and  after  I  came  back  I  wrote  a  letter 
to  Major  Myers. 

So  it  seems  Jackson  Grant  knew  where  the  office  was,  and  Mr.  Smith 
told  Scott  where  it  was,  just  as  he  had  previously  told  Myers. 
Now,  when  I.  H.  Chapman  testifies,  he  says : 

I  inquired  for  the  office  of  the  supervisor  of  registration;  I  inquired  of  Mr.  Myers 
and  Jackson  Grant,  but  I  could  not  find  the  office. 

He  inquired  of  both  Myers  and  Jackson  Grant,  who  knew  that  the 
office  was  the  same  as  Auditor  Smith's,  and  they  must  have  told  him 
where  it  was,  and  he  did  go  to  the  court-house,  but  does  not  say  a  word 
about  going  to  the  auditor's  office,  contenting  himself  with  looking  for 
a  "  sign"  and  looking  into  some  of  the  rooms,  without  ever  asking  any 
one  which  the  office  was. 

As  to  the  general  charge  of  obstructing  the  registration  of  Eepubli- 
cans  while  facilitating  that  of  Democrats,  a  careful  examination  of  the 
testimony  of  these  witnesses  shows  that  not  a  name  of  a  Republican  de- 
nied registration  is  given  except  that  of  W.  B.  Scott,  who  says  he 
wanted  his  certificate  changed  from  Jacksonborough  to  Green  Pond,  and 
could  not  get  it  done,  but  it  appears  by  the  poll-list  of  Jacksonborough, 
p.  627,  that  Scott  was  the  ninety-first  voter  at  that  precinct,  which  es- 
tablishes, first,  that  his  vote  was  not  lost,  and  secondly,  that  he  had  no 
right  to  a  transfer  to  Green  Pond.  No  other  name  is  given.  Myers 
says  he  had  the  affidavits  of  one  hundred  and  fifty  persons  desiring 
registration,  and  Scott  says  he  had  forty,  but  the  law  requires  that 
the  applicant  must  "  appear,'^  and  no  one  can  seriously  contend  that 


MILLER   VS.    ELLIOTT.  539 

auy  registration  law  should  allow  registration  upon  aflBdavit.    As  to 
favoring  Democrats,  Myers  says  on  cross-examination  : 

Q.  Do  you  know  of  your  own  knowledge  any  Democrats  who  registered  at  auy  time 
other  than  the  time  provided  for  by  law? — A.  Of  my  own  knowledge  I  can  not  say. 

Q.  Who  were  the  parties  that  told  you  that  they  had  urged  to  register  just  prior  to 
the  day  of  election  ? — A.  I  decline  to  give  their  names  for  the  reason  that  under  the 
intolerent  system  practiced  they  would  be  doomed  to  social  as  well  as  political  ostra- 
cism. 

Q.  Do  you  know  of  auy  one  in  Colleton  County  who  has  been  doomed  socially  or 
politically  on  account  of  their  politics? — A.  If  I  can  not  a  particular  one,  through 
the  teachings  of  leading  Democratic  orators  made  on  the  busting,  they  have  taught 
members  of  their  party  to  believe  that  in  the  South,  at  least,  it  is  a  social  question 
ami  all  others  are  subservient. 

Q.  Does  the  Republican  practice  the  same  ostracism  ? — A.  So  far  as  I  know  they 
do  not,  for  in  the  town  in  which  I  live  their  are  colored  Democrats  with  whom  I  and 
other  Republicans  are  on  the  most  pleasant  terms. 

G.  A.  Beach,  the  supervisor,  says  (p.  293) : 

Q.  Have  you  during  the  last  four  years  opened  your  books  for  registration  at  any 
of  the  precincts  named  in  your  examination  and  notified  the  citizens  of  either  of  those 
jtrecincts  of  your  appointment  to  appear  before  you  as  supervisor  of  registration  for 
the  purpose  of  renewing,  transferring,  or  for  original  registration  ? 

(Objected  to  on  ground  that  there  is  no  provision  of  law  by  which  any  such  ap- 
pointments could  have  been  made.) 

A.  I  have  not,  but  did  open  my  office  at  the  C.  H.,  as  required  bylaw,  for  registra- 
tion and  renewal  of  certificates. 

X  ex. : 

Q.  You  have  stated  that  no  renewals  have  been  made  by  you  of  registration  efts, 
of  voters  at  the  precincts  named.     Will  you  state  whether  any  applications  have  been 

made  for  such  renewals? — A.  There  haven't  been  any  made. 

•<»  *■  *  #  *  «  » 

Q.  Did  you  have  an  office  at  the  court-house? — A.  I  did. 

Q.  What  office  did  you  use? — A.  The  auditor's  office. 

Q.  Were  you  in  your  office  every  day  that  you  were  required  to  be  there  by  law  for 
the  purpose  of  attending  to  the  duties  of  registration  ? — A.  I  was,  except  one  day  I 
was  sick. 

At  page  374  he  further  testifies : 

Q.  state  your  age,  occupation,  residence,  and  where  you  were  on  the  6th  day  of 
Nov.  last. — A.  Age,  30  years ;  lawyer,  and  resides  about  6  miles  from  Walterboro. 

Q.  Do  you  hold  any  official  position  in  the  county  of  Colleton? — A.  I  do;  lam 
supervisor  of  registration. 

Q.  Have  you  an  office  at  the  court-house?  If  so,  state  where  it  is  located. — A.  I 
have  one,  and  hold  it  at  the  auditor's  office  in  the  court-house. 

Q.  Why  did  you  occupy  the  county  auditor's  office  ? — A.  Because  it  had  been  occu- 
pied by  the  other  supervisor,  and  there  was  no  other  office  that  I  could  get  at  the 
court-house,  and  the  auditor  oftered  me  his  office. 

Q.  Did  you  open  said  office  for  the  business  pertaining  to  your  duties  on  each  and 
every  day  required  of  you  by  law? — A.  I  did,  except  one  day  that  I  was  sick. 

Q.  Do  you  remember  what  day  that  you  were  sick? — A.  I  do  not;  it  was  the  first 
Monday  in  March  or  the  first  Monday  iu  April. 

Q.  How  long  have  you  held  the  office  of  supervisor  of  registration  ? — A.  Between 
three  and  four  years. 

Q.  Have  you  always,  and  since  your  appointment  to  said  office,  occupied  county 
auditor's  ofBce? — A.  I  have. 

Q.  Have  you  always  kept  your  records  and  books  in  said  office? — A.  I  have. 

Q.  Have  you,  since  your  appointment  to  said  office,  oifered  every  facility  for  the 
registration  and  renewal  of  lost  certificates  to  voters  ? — A.  I  have  so  far  as  the  law 
required. 

Q.  When  you  were  at  Walterboro,  on  the  days  required  of  you  by  law,  and  when 
you  were  not  in  the  office,  were  you  around  on  the  court  hill  where  you  could  be  seen 
by  any  person  who  may  have  had  business  with  you  ? — A.  I  was;  during  the  time  I 
was  absent  from  my  office  I  was  around  the  court'hill  where  I  could  be  seen. 

Q.  Then  no  one  was  turned  oti"  by  you  from  the  seventh  Congr  ssional  district  who 
desired  to  register  oi-  have  their  certificates  renewed  ?— A.  No  one  at  all. 

So  much  for  Colleton  County. 


540  MILLER    VS.    ELLIOTT. 

As  to  Orangeburgh  County  the  maiority  rely  on  tbe  testimony  of  E. 
A.  Webster,  a  part  of  which  they  give.  A  careful  examination  of  his 
Avhole  testimony  shows  that,  happening  to  meet  the  supervisor  on  the 
street  after  the  first  Monday  in  August,  when  he  admits  that  by  hiw 
the  books  were  then  closed,  he  applied  for  transfer  and  renewal  cer- 
tificates for  other  persons,  which  he  also  knew  was  illegal.  Much  of 
his  testimony  is  admittedly  hearsaj",  and  his  cross-examination  closes 
as  follows : 

Q.  Give  me  the  name  of  any  Republicans  who  applied  for  registration  from  the 
first  Monday  in  Jan'y,  1887,  to  the  first  Monday  in  July,  1888,  who  were  rejected,  and 
when,  in  the  7th  Cong.  dist. — A.  I  will  give  one  as  a  special  case;  Gadsden  McFad- 
den,  a  voter  in  first  dist.  I  can  not  give  the  names  now,  nor  date,  but  I  have  them 
on  record  at  my  home  in  Orangeburg. 

Q.  Then  you  can  not  swear,  on  personal  knowledge,  to  one  who  was  rejected  before 
June,  1888,  who  applied  in  person,  according  to  law  f — A.  As  above  stated,  I  can  not 
give  the  names  now.    I  can  not  give  the  name. 

E.  A.  Webstek. 

The  only  person  named  was  a  voter  in  the  first — not  the  seventh — 
district.  The  foregoing  four  witnesses  are  all  whom  the  majority  refer 
to,  and  yet  they  do  not  hesitate  to  say: 

By  means  detailed  by  these  witnesses,  thousands  of  Republicans  of  the  seventh  dis- 
trict were  deprived  of  such  certificates  of  registration  as  the  managers  would  recog- 
nize. 

BALLOTS  IN  WRONG  BOX. 

We  come  now  to  the  consideration  of  that  clause  of  the  statute  of 
South  Carolina  providing  for  the  labeling  of  the  ballot-boxes,  and  the 
numbers  thereof,  and  in  this  connection  to  the  allegation  "  that  it  maKes 
an  educational  test,  and  therefore  is  in  direct  violation  of  the  constitu- 
tion of  the  State."  It  is  proper  here  to  observe  that  the  law  in  refer- 
ence to  the  number  of  boxes  i)revailed  in  that  State  prior  to  1861.  and 
therefore  it  will  hardly  answer  the  purpose  of  the  majority  of  the  com- 
mittee in  this  case.  The  proof  shows  that  the  law  was  strictly  complied 
with  in  labeling  the  boxes  for  President  and  member  of  Congress  in  plain 
and  distinct  Roman  letters. 

There  was  no  dishonesty  proved;  no  failure  to  discharge  their  duty 
on  the  part  of  any  of  the  election  officers,  the  only  complaint  being  that 
the  tickets  for  member  of  Congress  found  in  the  Presidential  box  were 
destroyed,  no  matter  who  they  were  cast  for,  contestant  or  contestee, 
as  appears  in  the  evidence  of  one  of  contestant's  witnesses,  one  Law- 
rence Brown,  page  14  of  the  record.  He  was  interrogated  on  cross- 
examination  by  Mr.  Gilland: 

Question.  How  many  of  Mr.  Elliott's  votes  were  found  in  the  Presidential  box? — 
Answer.  Twenty-one. 
Q.  Those  were  thrown  out  and  not  counted? — A.  Yes,  sir. 

It  seems  there  was  no  deviation  from  this  rule,  and  the  law  was  en- 
forced to  the  letter  in  this  regard  with  the  utmost  impartiality. 

The  Impression  is  sought  to  be  made  that  there  were  six  or  seven 
boxes  all  together  at  the  same  j)lace,  and  the  managers  kept  moving 
them  about,  and  mixing  and  shuffling  them  up  like  a  deck  of  cards,  and 
the  managers,  when  called  on  to  know  the  boxes  by  the  ignorant  voter, 
so  as  to  know  where  and  in  what  box  to  deposit  his  ballot,  as  he  was 
bound  to  do  under  the  law,  utterly  refused  to  read  to  him  the  names 
on  the  boxes.  The  evidence  fails  to  support  this.  As  a  matter  of  fact, 
there  were  but  two  boxes  at  the  places  designated  for  the  reception  of 
votes  for  President  and  members  of  Congress. 


MILLER    VS.    ELLIOTT.  541 

The  constitution  of  South  Caroliua,  section  33,  article  1,  heretofore 
cited,  requires  that  the  right  of  snflrage  shall  be  protected  by  laws 
regulating  elections,  and  prohibiting,  under  adequate  penalties,  all  un- 
due influences  from  "  bribery,  power,  tumult,  or  improper  confluct."  It 
also  provides  that  right  of  suiirage  shall  be  exercised  by  ballot.  The 
object  in  the  laws  in  all  the  States  which  provide  for  the  ballot  is  to 
have  the  exercise  of  the  right  to  vote  a  secret,  unknown  to  any  but  the 
voter  himself,  and  for  the  best  of  reasons.  The  fact  that  the  intention 
of  this  law  is  often  thwarted  in  the  heat  of  a  political  campaign  is  un- 
fortunately true,  but  not  more  so  in  South  Carolina  than  in  Massachu- 
setts or  Illinois;  in  fact,  we  feel  justified  in  affirming  that  the  election 
laws  of  the  former  State  are  better  calculated  to  protect  the  voter  in 
the  free  exercise  of  the  right  to  vote  a  secret  ballot  and  thus  express 
his  own  preference  to  the  exclusion  of  that  of  others,  than  in  most  of 
the  States  of  the  Union. 

It  would  be  difficult  to  design  an  election  law  better  calculated  to  pro- 
tect the  voter  from  "  an  undue  influence  from  power,  bribery,  tumult, 
or  improper  conduct"  than  the  law  of  the  State  now  under  considera- 
tion. It  was  mandatory  on  the  legislature  of  that  State  to  do  so,  and 
in  so  doing  it  devised  a  code  of  rules  most  admirably  adapted  for  the 
purpose. 

The  law  requires  the  voter  to  go  alone  to  the  polls,  unattended  by  the 
worker,  and  protected  from  the  bulldozer  and  the  heeler,  paid  possibly 
to  force  him  to  express  by  his  ballot  another's  will,  and  not  his  own. 
On  reaching  the  polls  he  does  so  a  free  man,  relieved  from  all  coercing 
influences ;  no  one  is  permitted  even  to  touch  his  white  ballot  but  him- 
self; the  boxes  are  before  him,  properly  labeled,  and  if  he  wants  in- 
formation on  the  subject  there  are  sworn  officers  of  the  law  there  to  give 
it  to  him  under  the  mandates  of  the  law  ;  and  then,  with  his  own  hand, 
he  dejiosits  his  vote  in  a  securely  locked  box,  and  thus,  free  and  un- 
trammeled,  gives,  expression  to  his  own  will.  If  the  wise  provisions  of 
this  law  were  being  interfered  with,  and  rendered  nugatory  by  any  out- 
sider at  any  poll,  or  if  it  came  under  the  observation  of  those  selected 
to  supervise  the  execution  of  this  law  that  its  letter  or  intention  or 
spirit  was  being  violated,  we  submit  it  was  the  duty  of  the  managers  to 
shift  the  boxes,  or  perform  any  other  legal  act,  to  subserve  its  proper 
execution. 

The  subject  of  a  "free  ballot  and  a  fair  count"  has  long  engaged  the 
anxious  attention  of  those  who  view  in  the  increasing  prostitution  of 
the  ballot,  year  by  year,  a  grave  menace  to  republican  institutions  upon 
this  continent.  Scarcely  a  session  of  the  legislature  in  the  various 
States  transpires,  that  this  subject  is*not  the  object  of  serious  consid- 
eration. The  miserable  spectacle  presented  at  every  Presidential  elec- 
tion throughout  the  country,  at  thousands  of  its  polling  places,  of  long 
lines  of  men  forced  by  dire  circumstances  to  surrender  their  right  of 
suffrage  and  their  manhood  to  others,  and  permit  themselves  to  be 
marched  to  the  polls  from  workshop,  forge,  mine,  and  factory,  and  the 
unlimited  employment  of  money  and  other  modes  and  methods  of  the 
"greatest  managing  politicians  of  the  land,"  is  fast  bringing  about  a 
revolution  in  the  election  laws  of  the  country. 

The  election  laws  of  South  Carolina  have  blazed  the  way  to  genuine 
reform.  It  is  the  skirmish  line  behind  which  comes  to  do  battle  purer 
methods  and  greater  protection  from  "  all  undue  influence  from  power^ 
bribery,  tumult,  or  improper  conduct."  Many  of  its  features  have  been 
adopted  in  the  States  where  what  is  known  as  the  Australian  system  of 
voting  now  by  recent  enactment  obtains. 


542 


MILLER    VS.    ELLIOTT. 


For  the  benefit  of  the  majority  and  any  others  who  may  be  horrified 
and  indignant  because  the  law  of  South  Carolina  refuses  to  permit  the 
l)oIitical  bummer  and  hired  swashbuckler  to  attend  voters  to  the  polls 
to  help  them  vote,  and  makes  him  rely  on  himself,  and  protects  him  in 
so  doing,  We  here  quote  some  of  the  provisions  of  a  law  recently  enacted 
in  the  State  of  Missouri  and  other  States,  and  known  as  the  Australian 
system  of  voting,  and  which  justified  in  their  practical  operations  the 
high  encomiums  passed  upon  them  by  those  sincerely  desirous  for  a 
"free  ballot  and  a  fair  count." 

Sec.  24.  On  any  day  of  election  of  public  officers  in  any  election  district,  each 
qualified  elector  shall  be  entitled  to  receive  from  the  judges  of  the  election  one 
ballot.  It  shall  be  the  duty  of  such  judges  of  election  to  deliver  such  ballot  to  the 
elector,     *     »     » 

Skc.  Ii5,  On  receipt  of  his  ballot  the  elector  shall  forthwith  and  without  leaving 
the  polling  place  retire  alone  to  one  of  the  places,  booths,  or  compartments  provided 
to  prepare  his  ballot.  He  shall  prepare  his  ballot  by  crossing  out  therefrom  the 
names  of  all  candidates  except  those  for  whom  he  wishes  to  vote,  or  in  case  of  a 
ballot  containing  a  constitutional  amendment  or  a  question  to  be  submitted  to  the 
vote  of  the  people,  by  crossing  out  therefrom  parts  of  the  ballot  in  such  manner  that 
the  remaining  parts  shall  express  his  vote  upon  the  questions  submitted.  After  pre- 
paring his  ballot  the  elector  shall  fold  the  same  so  that  the  face  of  the  ballot  will  be 
concealed,  and  the  signatures  or  initials  of  the  judges  maybe  seen.  He  shall  then 
vote  forthwith  and  before  leaving  the  polling  place. 

Sec,  26,  Not  more  ttian  one  person  shall  be  permitted  to  occupy  any  one  booth  at 
one  time,  and  no  person  shall  remain  in  or  occupy  a  booth  longer  than  may  be  neces- 
sary to  prepare  his  ballot,  and  in  no  event  longer  than  five  minutes. 

Sec.  28.  Any  elector  Who  declares  to  the  judges  under  oath  that  he  can  not  read  or 
write,  or  that  by  reason  of  physical  disability  he  is  unable  to  mark  his  ballot,  may 
declare  his  choice  of  candidates  to  either  one  of  the  judges  having  charge  of  the  bal- 
lots, who,  in  the  presence  of  the  elector,  shall  prepare  the  ballots  for  voting  in  the 
manner  hereinbefore  provided  ;  or  such  elector,  after  making  such  oath,  may  require 
one  of  such  judges  to  read  to  him  the  contents  of  the  ballot,  so  that  the  elector  can 
ascertain  the  relative  position  of  the  names  of  the  candidates  on  each  ballot,  where- 
upon the  elector  shall  retire  to  one  of  the  places,  booths,  or  compartments  provided 
to  prepare  his  ballot  in  the  manner  hereinbefore  provided. 

We  direct  special  attention  to  the  following  sections: 

Sec.  23.  All  officers  upon  whom  is  imposed  by  law  the  duty  of  designating  polling 
places,  shall  provide  in  each  place  designated  by  them  a  sufficient  number  of  places, 
booths  or  compartments,  which  shall  be  furnished  with  such  supplies  and  conven- 
iences as  shall  enable  the  voter  conveniently  to  prepare  his  ballot  for  voting,  in  which 
compartment  the  electors  shall  mark  their  ballots,  screened  from  observation,  and  a 
guard  so  constructed  that  only  persons  within  the  rail  can  approach  within  five  feet 
of  the  ballot-boxes,  or  the  places  or  compartments  herein  provided  for.  The  number 
of  places  or  compartments  shall  not  be  less  than  one  for  every  hundred  electors  who 
voted  at  the  last  preceding  general  election  in  the  district.  No  persons  other  than 
electors  engaged  in  receiving,  preparing,  or  depositing  their  ballots  shall  be  permit- 
ted to  be  within  said  rail,  except  by  authority  of  election,  and  except  as  now  by  law 
otherwise  provided.  The  expenses  of  providing  such  places,  or  compartments,  or 
guard-rails,  shall  be  a  public  charge,  and  shall  be  provided  for  in  each  town  and 
city,  in  the  same  manner  as  the  other  election  expenses. 

Now  this  law  embodying  the  same  ideas  and  principles  as  the  law  of 
South  Carolina,  has  never  been  declared  unconstitutional,  nor  has  it  so 
far  as  we  know  ever  been  questioned.  The  object  of  both  laws  is  to 
separate  the  voter  when  he  goes  to  deposit  his  ballot  from  all  outside 
influence  and  dictation. 

Both  laws  were  made  to  place  the  voter  on  his  own  intelligence,  or  on 
such  information  as  he  obtained  from  the  judges  of  election  or  mana- 
gers, who  are  sworn  ofiBcers  of  the  law. 

No  better  illustration  of  the  wisdom  of  this  law  can  be  found  than  is 
furnished  by  the  evidence  in  relation  to  Graham ville  and  Ladies'  Island 
precincts  in  Beaufort  County,  where  a  large  number  of  voters,  under 
the  instruction  of  contestant  and  others  of  those  voting  them,  deposited 
a  Miller  ballot  in  both  boxes. 


MILLER    VS.    ELLIOTT.   .  543 

This  was  a  willful  and  corrupt  violatiou  of  the  law,  knowingly  com- 
mitted, and  the  House  of  Representatives  is  gravely  asked  to  sanction 
and  condone  it.  Grahamville  was  the  home  of  Miller.  He  was  present 
at  that  precinct  a  large  part  of  the  day,  with  tickets  in  his  hands  and 
very  active,  and  voted.  The  count  of  the  boxes  and  returns  showed 
that  there  were  237  votes  polled.  Miller  received  in  the  Congressional 
box  205  votes  and  in  the  Presidential  189  votes,  and  not  one  solitary 
vote  was  cast  for  the  Republican  Presidential  ticket.  Miller  himself 
forgot  to  vote  for  Harrison  and  Morton,  but  manifestly  cast  two  votes 
for  himself. 

I.  0.  Eue,  who  had  charge  of  contestant's  tickets,  gives  this  explana- 
tion of  the  above — p.  452 : 

Q.  Doyoii  know  if  the  Congressional  ticket  was  voted  in  the  Congressional  and 
electors'  boxes  at  Grahamville;  if  so,  by  whose  dictation? — A.  In  the  morning  when 
I  went  to  the  polls  and  began  distributing  tickets,  I  only  gave  one  ticket  to  each 
voter.  Some  ot  the  voters  called  my  attention  to  the  fact  that  there  was  also  a  Pres- 
idential box,  whereupon  I  gave  them  another  Congressional  ticket  and  told  theai  they 
just  as  well  vote  that  one  also,  for  luck,  and  continued  to  do  so  the  rest  of  the  day, 
as  they  did  not  seem  satisfied  in  voting  the  one  ticket. 

The  majority  of  the  committee,  in  speaking  of  "  ballots  in  wrong  boxes," 
uses  the  following  language : 

As  has  been  noted,  managers  of  elections  are  prohibited  from  counting  any  ballots 
found  in  the  wrong  box.  At  the  Federal  polls,  at  this  election,  there  were  two  boxes, 
one  for  Presidential  electors  and  one  for  Congressmen.  Under  the  peculiar  wording  of 
the  statute  unlettered  voters  are  obliged  to  rely  upon  those  of  their  associates  who 
can  read  to  learn  how  to  deposit  their  tickets  so  as  not  to  get  them  in  the  wrong 
box,  and  so  lose  their  votes.  If  the  two  boxes  are  put  into  position  before  the  voting 
commences,  and  are  permitted  to  remain  during  the  day,  there  is  little  danger  of 
mistake,  all  the  voters  being  instructed  as  to  their  position  by  those  in  whom 
they  have  confidence.  But  if  the  boxes  are  shifted  about  at  intervals  during  the  day 
it  follows,  as  a  matter  of  course,  that  every  unlettered  voter  who  goes  to  the  poll  after 
the  change,  and  before  its  discovery  deposits  his  ballot  in  the  wrong  box,  loses 
his  vote,  so  far  as  the  count  of  the  managers  is  concerned.  There  is  no  prohibition  in 
the  statute  against  shifting  the  boxes,  and  so  it  is  assumed  by  the  managers  of  elec- 
tions that  they  have  the  right  to  shift  the  boxes  as  often  as  they  please,  for  the  express 
purpose,  as  they  acknowledge,  of  confusing  the  voters  and  causing  them  to  deposit 
their  ballots  in  the  wrong  box. 

We  submit  that  the  majority  of  the  committee  entirely  misconceives 
the  spirit  and  meaning  of  the  law.  The  law  on  this  subject  reads  as 
follows: 

At  each  precinct  a  space,  or  inclosure,  such  as  the  managers  of  election  shall  deem 
fit  and  sufficient,  shall  be  railed  oft",  or  otherwise  provided,  with  an  opening  at  one 
end  or  side  for  the  entrance  of  the  voter,  and  an  opening  at  the  other  for  his  exit,  as 
a  polling-place  in  which  to  hold  the  election  for  the  State,  circuit,  and  county  officers. 
A  similar,  but  distinct,  space  or  inclosure  shajl  be  railed  off,  or  otherwise  provided, 
as  a  polling-place  for  the  election  of  Congressman  and  Presidental  electors,  at  such 
distance  from  the  polling-place  for  State  officers  as  the  commissioners  of  election  for 
each  county  shall  determine  and  appoint  for  each  election  precinct.  But  one  voter 
shall  be  allowed  to  enter  any  polling-place  at  a  time,  and  no  one  except  the  managers 
SHALL  BE  ALLOWED  TO  SPEAK  to  the  voter  while  in  the  polling-place  casting  his  vote. 

The  italics  are  our  own.  Now,  what  is  the  object  of  this  law  ?  Mani- 
festly the  very  same  that  the  Australian  system  hasinview,  and  which 
has  been  heretofore  cited,  and  which  is  attracting  such  favorable  at- 
tention in  the  various  States,  to  throw  the  protecting  arm  of  the  law 
around  the  voter,  especially  the  weak  and  timid;  enable  him  to  give  ex- 
pression to  his  own  will  at  the  polls,  and  not  that  of  others;  in  other 
words,  to  shield  him,  and,  in  the  language  of  the  constitution  of  South 
Carolina,  "prohibit  all  undue  influence  from  power,  bribery,  tumult,  or 
improper  conduct."  Incredible  as  it  may  seem,  yet  our  friends  of  the 
majority,  because  the  managers  refused  to  permit  the  voters  to  be  spoken 


544  MILLER    VS.    ELLIOTT. 

to,  and  directed  how  to  vote  by  "those  in  whom  they  had  confidence," 
propose  to  repeal  the  law  here,  ignore  the  constitution  of  a  State  under 
the  provisions  of  which  this  hiw  was  passed,  and  count  against  their 
political  enemy,  and  in  favor  of  their  political  friend,  one  thousand  votes 
cast  at  the  various  polls  in  the  district. 

One  of  the  witnesses  testified  that  at  one  of  the  precincts  a  man 
climbed  a  tree,  and  from  his  perch  among  the  branches  directed  men 
how  to  vote.  Another  witness,  cited  by  the  majority  at  page  13,  testi- 
fies that  at  a  different  precinct,  Eastover,  one  of  the  United  States  su- 
pervisors spoke  to  and  wrote  notes  to  the  voters  telling  them  how  to 
vote ;  and  all  that  in  the  very  teeth  of  the  law  providing  for  a  barricade 
to  protect  the  voters  from  just  such  interference,  providing  but  one 
man  should  be  in  there  at  the  same  time,  and  further  providing  that 
no  one  should  speak  to  the  voter  while  in  the  polling-place  casting  his 
vote,  except  the  managers.  The  indictment  thus  preferred  against  the 
election  and  registration  laws  of  South  Carolina,  and  also  against  the 
managers,  presumes  guilt  instead  of  innocence.  And  the  statement 
that  "  the  managers  acknowledged  that  they  shifted  the  boxes  for  the 
express  purpose  of  confusing  the  voters  and  causing  them  to  deposit 
their  ballots  in  the  wrong  box,"  is  not  borne  out  by  the  testimony  ;  nor 
is  the  further  statement  that  in  every  instance  where  the  boxes  were 
shifted  "  the  purpose  was  unlawful,"  borne  out  either  by  the  law  or  the 
facts. 

As  the  majority  virtually  decides  this  case  against  contestee  by  giving 
to  contestant  1000  votes  alleged  to  be  found  in  the  wrong  box,  we  think 
it  necessary  to  examine  carefully  the  testimony.  Speaking  generally, 
we  claim,  first,  that  the  testimony  relied  on  by  the  majority  is  very  un- 
satisfactory in  character,  and  was  given  under  very  suspicious  circum- 
stances. It  was  taken  about  four  months  after  the  election,  and  in  one 
case  only  did  the  witness  pretend  to  rely  on  anything  but  his  memory; 
and  yet,  as  a  rule,  the  witness  as  to  each  precinct  undertakes  to  give 
from  memory  the  precise  vote  cast,  with  exact  numbers  in  the  wrong 
box.  When  it  is  remembered  that  contestant's  attorneys  had  in  every 
case  certified  copies  of  the  manager's  returns  and  poll-lists,  it  can  very 
easily  be  seen  how  the  testimony  relied  on  by  the  majority  could  be  ob- 
tained.   Here  is  a  sample.    B.  I.  Fortune,  as  to  Corbett's  store  (p.  21) : 

Q.  How  uiauy  ballot-boxes  were  at  that  poll  ? — A.  Two. 
Q.  How  many  persons  voted  at  that  precinct  that  day  ? 
(Objected  to  oa  the  ground  that  it  does  not  call  for  the  best  evidence.) 
A.  199. 

Q.  How  many  votes  were  returned  by  the  managers  of  election  for  T.  E.  Miller  t 
(Objected  to  on  the  same  ground.) 
A.  79. 

q!  How  many  for  Wm.  Elliott  T— A.  9L 
Q.  How  many  for  both  ?— A.  170. 

Q.  What  became  of  the  other  29  ballots  T— A.  They  were  destroyed  by  the  mana- 
gers. 
Q.  Why  were  they  destroyed? — A.  Because  they  were  placed  into  the  wrong  box. 
Q.  What  box  ? — A.  Into  the  Presidential  box. 
Q.  Whose  names  did  these  ballots  bear? — A.  T.  E.  Miller. 

How  easy  for  the  witness  to  give  a  perfectly  satisfactory  answer  when 
the  attorney  put  the  question,  "what  became  of  the  other  29  ballots?" 
On  the  other  hand,  it  was  almost  impossible  to  contradict  the  witnesses 
as  to  details  by  men  having  strict  regard  for  the  obligation  of  an  oath 
and  for  the  very  reasons  above  alleged.  It  was  four  months  after  the 
election,  and  they  could  not  undertake  to  swear  to  exact  figures.  Com- 
ing to  the  several  precincts  at  which  the  majority  gives  contestant 
votes  under  this  head,  we  note  the  following  points :     At  Gourdin's  they 


MILLER    VS.    ELLIOTT.  545 

give  contestaut  22  votes.  The  only  witness,  Daniel  Eavanell  (p.  8), 
says:  The  votes  in  the  wrong  box  "were  about  21  or  22."  On  this 
testimony  contestant,  in  his  brief  (p.  18),  did  not  venture  to  claim  more 
than  21,  but  the  majority  unhesitatingly  gives  him  22.  Not  very  mate- 
rial, to  be  sure,  in  point  of  numbers,  but  it  indicates  the  tendency  of  the 
report  througliout.  We  give  the  following  from  the  testimony  of  the 
managers.     W.  M.  O'Bryau  (p.  412) : 

Q.  How  did  the  ignorant  voters  distinguish  the  boxes? — A.  They  asked  the  mana- 
gers. 

Q.  Did  the  managers  tell  them? — A.  They  did. 

Q.  I  understand  yon  to  say  that  the  managers  would  tell  the  voters  which  was  the 
electoral  box  and  which  was  the  Congressional  box. — A.  Exactly. 

Q.  Were  there  votes  for  both  Miller  and  Elliott  in  the  wrong  boxes? — A.  There 
were. 

Q.  Can  you  say  how  many  for  each? — A.  I  can  not. 

Q.  Do  you  know  Daniel  Ravanell  ? — A.  I  do. 

Q.  What  was  he  doing  there  that  day  ? — A.  He  was  supervisor. 

Q.  Did  Ravauell  keep  any  account  of  any  votes  that  day? — A.  He  did  not,  to  the 
best  of  my  belief;  I  was  standing  where  I  could  see  him  when  the  votes  were  counted 
and  he  took  no  account  then. 

A.  M.  Gorden  (p.  413)  says : 

Q.  How  did  the  ignorant  voters  distinguish  the  boxes? — A.  They  asked  the  man- 
agers. 

Q.  When  asked  did  the  managers  tell  them  ? — A.  Yes. 

Q.  Were  there  any  votes  in  the  wrong  boxes  that  day  ? — A.  Yes. 

Q.  For  whom  were  those  votes? — A.  There  were  some  for  Elliott  and  some  for 
Miller. 

Q.  How  many  for  each  ? — A.  I  have  no  idea ;  I  kept  no  record  of  them. 

Q.  Where  was  Ravanell's  position  while  the  votes  were  being  counted? — A.  Stand- 
ing right  by  me. 

Q.  Could  he  see  the  votes  as  they  were  read  ? — A.  He  could. 

Q.  Did  he  keep  any  kind  of  tally? — A.  He  kept  no  record  at  all ;  he  had  neither 
paper  nor  pencil  in  his  hand  during  the  entire  counting  of  the  votes. 

Cross-examined  by  S.  J.  Lee,  Esq. : 

Q.  Did  Ravanell  make  a  return  a* supervisor? — A.  He  did. 

Q.  May  he  not  have  kept  account  of  the  number  of  Miller's  ballots  in  the  wrong 
box  in  his  head  ? — A.  I  don't  think  it  was  possible  for  him  to  have  done  it. 

Q.  There  were  not  more  than  twenty-five  or  thirty  ballots  found  in  the  wrong  box, 
were  there  ? — A.  I  don't  know  how  many. 

Q.  Your  return  shows  one  hundred  and  fifty-one  votes  as  being  cast  in  the  proper 
box  that  day  for  Congressman,  while  the  poll-list  shows  one  hundred  and  seventy- 
three  persons  voted,  a  diflfarence  of  twenty-two.  Ravanell  says  these  twenty-two 
were  Miller's  ballots  found  in  the  electoral  box.  Can  you  say  that  this  is  untrue  ? — A. 
I  can. 

Q.  Please  explain  ? — A.  I  called  the  votes  myself,  and  saw  that  there  were  Elliott 
votes  in  the  wrong  box. 

Q.  How  many  ? — A.  I  kept  no  account  of  how  many. 

Q.  How  many  Congressional  ballots  were  found  in  the  electoral  box  ? — A.  Don't 
know ;  there  were  some ;  kept  no  count. 

A.  M.  Gordon. 

SALTERS. 

This  is  the  poll  already  mentioned  at  which  the  Eepublican  super- 
visor, Lawrence  Brown,  proves  that  Miller  lost  23  and  Elliott  21  in  the 
wrong  box. 

KDJGSTREE  (66). 

These  votes  are  given,  on  the  testimony  of  M,  M.  Morzon,  Republican 
supervisor  (p.  13),  who  says  that  the  vote  was  as  follows: 

Miller 66 

Elliott 133 

Miller  in  wrong  boxes -. 66 

Total 320 

H.  Mis.  137 35 


546  MILLER    VS.    ELLIOTT. 

and  that  "tbe  others"  were  cast  for  Dargan.  By  his  return  made  to 
the  chief  supervisor  on  the  night  of  tlie  election,  he  gave  the  vote  as 
follows  (p.  6G4) : 

Miller 159 

Elliott 133 

Dargan 56 

Whole  number  for  Congress 348 

The  total  is  28  more  than  he  swore  to,  and  Miller's  vote  is  27  greater 
than  he  swore  he  got  in  all  boxes,  G6  +  63  =  132.  In  his  return  he 
said  not  a  word  about  votes  in  wrong  boxes  but  gave  Miller  27  more 
than  he  swears  he  got  in  all  boxes.  Did  he  know  most  about  the  vote  on 
the  night  of  the  election,  November  6, 1888,  or  on  February  11, 1889,  the 
day  he  testified  ?  His  testimony  certainly  shows  that  he  knew  nothing 
about  it  on  the  night  of  the  election ;  how  did  he  afterwards  acquire 
more  correct  iuformation  ?  The  mystery  is  explained  when  we  find  th  it 
the  poll  list  introduced  by  contestant  (p.  039),  shows  only  320  votes  cast. 
Before  his  examination  he  had  the  privilege  of  seeing  it,  and  shaped 
his  testimony  accordingly.  This  conclusion  is  irresistible,  and  clearly 
establishes  the  unreliable  character  of  this  whole  line  of  testimony. 
And  yet  it  is  upon  such  proof  that  the  majority  gives  contestant  1,000 
votes  and  a  seat  in  Congress. 

INDIANTOWN. 

Upon  the  testimony  of  Jesse  S.  Fulmore,  Republican  supervisor  (p. 
14),  the  majority  gives  contestant  81  votes  at  this  poll.  All  that  Ful- 
more can  say  is  that  that  was  the  number  "as  well  as  I  can  remember." 
There  is  no  other  testimony  to  sustain  it.  On  the  night  of  the  election 
he  made  his  return  as  follows  (p.  664): 

Miller 82 

Elliott 30 

Whole  number  for  member  of  Congress 112 

His  duty  was  to  report  anything  wrong,  and  yet  not  a  word  is  said 
about  votes  for  contestant  not  being  counted. 

LYNCHBURG  (29). 

The  witness  is  I.  R.  Smith  (p.  27),  and  he  swears  to  the  following 
vote: 

Total 181 

Miller , 18 

Elliott 134 

Miller  in  Presidential  box 29 

181 
We  give  his  testimony  in  full  on  this  point. 

Testimony  of  I.  R.  SMITH,  sworn: 

Q.  State  your  name,  age,  residence,  and  occupation. — A.  I.R.Smith;  36  years  old: 
Lynchburg  Township,  and  a  farmer. 

Q.  Where  were  you  on  the  Gth  day  of  November,  1888? — A.  I  was  at  Lynchburg 
polls. 

Q.  What  official  position  did  you  hold? — A.  I  was  a  U.  S.  supervisor.. 

Q.  Were  you  at  the  polls  during  the  entire  day? — A.  I  was. 

Q.  Did  you  see  the  votes  counted  ? — A.  I  did. 

Q.  How  many  ballot-boxes  were  there? — A.  Two;  the  Congressional  and  Preai< 
dential  boxes. 

Q.  How  many  persons  voted  at  that  box  on  that  dayf 


MILLER    VS.    ELLIOTT.  547 

(Objected  to  as  not  calling  for  the  best  evidence.) 

A.  181. 

Q.  How  many  votes  were  returned  for  T.  E.  Miller  t 

(Objected  to  as  above.) 

A.  18. 

Q.  How  many  for  Mr.  Elliott  1 

(Objected  to  as  above.) 

A.  i34. 

Q.  How  many  for  the  two  1 — A.  152. 

Q.  What  became  of  the  other  29  ? — A.  They  were  counted  out.  ' 

Q.  Where  were  the  other  29  ballots? — A.  In  the  Presidential  box. 

Q.  Whose  names  did  these  ballots  bear  ? 

(Objected  to  as  being  secondary  evidence.) 

A.  thos.  E.  Miller. 

(Objected  to  as  above.) 

This  reads  very  nicely,  and  is  perfect  in  arithmetic.  It  was  very 
easy  for  the  witness,  in  answer  to  the  suggestive  question  ''  What  be- 
came of  the  other  29"  to  say  "They  were  counted  out,"  and  had  the 
name  of  "Thos.  E.  Miller"  on  them.  But  unfortunately  for  the  wit- 
ness, he,  too,  made  a  return  on  the  night  of  the  election,  and  here  it  is 
(p.  062): 

Miller 18 

Elliott IM 

Robert  Simmons 1.5 

Scattering 14 

Whole  number  for  member  of  Congress 181 

On  the  night  of  the  election  he  gave  Eobert  Simmons  15  votes  and 
reported  14  as  scattering,  but  when  he  came  to  testify  on  February  9, 
1889,  he  utterly  ignored  this  return,  probably  had  forgotten  all  about 
the  figures,  and  boldly  gave  the  whole  29  to  contestant  as  being  cast 
in  the  wrong  box.    We  think  further  comment  is  unnecessary. 

BETHEL  CROSS-ROADS  (5). 

G.  W.  Michau  (p.  34)  is  the  witness  relied  on  to  give  contestant  these 
5  votes.    On  his  cross-examination  he  says : 

Q.  In  what  box  were  they  found,  Congressional  or  President  ? — A.  2  in  the  Presi- 
dential and  3  in  the  Congressional  box. 

G.  W.  Michau. 

The  result  is,  therefore,  that  the  majority  give  contestant  3  votes 
found  in  the  Congressional  box,  on  the  ground  that  they  were  not  in 
that  box,  but  in  some  other  box. 

MAYESVILLE  (40). 

±.  0.  McCall  (p.  36)  is  the  witness.    He  swears  to  the  following  vote 
Total  220 

Miller 58 

Elliott 122 

Miller,  in  wrong  box 40 

Making 220 

He,  too,  made  a  return  on  the  night  of  election  (p.  662),  as  follows : 

Miller 58 

Elliott 122 

Simmons 3 

Whole  number  for  member  of  Congress..... 183 


548  "  MILLER    VS.    ELLIOTT. 

Ifot  a  word  is  said  about  auy  votes  for  contestant  in  the  wrong  box, 
but,  in  his  testimony,  he  gives  him  40  votes,  including  those  cast  for 
Simmons,  whom  he  does  not  mention. 

FORT  MOTTE  (16). 

R.  M.  Clafty  (p.  381)  is  the  witness.    He  says : 

Q.  Were  any  ticket  with  the  name  of  Miller  on  them  for  Congress  found  in  the 
Presidential  box? — A.  I  think  there  were. 

Q.  Were  they  counted  for  Miller  f — A.  No. 

Q.  Were  they  destroyed  by  managers  ? — A.  Yes. 

Q.  Can  yon  state  about  how  many  ? — A.  There  were  about  fifteen  or  sixteen  in  both 
boxes  altcgethor;  there  were  some  for  Presidential  electors  and  some  for  Miller. 

On  this  testimony  contestant's  counsel  (p.  14)  had  the  modesty  to 
claim  only  fifteen  votes,  but  the  majority  increase  it  to  sixteen. 

BIGGIN  CHURCH  (18). 

Carolina  Holmes  (p.  18)  gives  the  vote  as  follows : 

Miller 83 

Elliott yfi 

Miller,  in  wrong  box 18 

Simmons 17 

Total 144 

His  return  as  supervisor  on  night  of  the  election  is  (p.  GG7) : 
Elliott - 26 

Miller 83 

Robert  Simmons 17 

Whole  number  for  member  of  Congress 126 

BLACK  OAK  (44). 

The  witness  Sampson  Flowers  (p.  43)  gives  the  following  vote : 

Miller 66 

Elliott 21 

Miller,  in  wrong  box , 44 

Total 131 

His  return  as  supervisor,  signed  also  by  the  Democratic  supervisor, 
is  (p.  C6) : 

Miller 66 

Elliott 21 

Whole  number  for  member  of  Congress 87 

CALAMUS  POND  (32). 

M.  P.  Eichardson,  Republican  supervisor  (p.  48),  swears  to  the  follow- 
ing vote: 

Total 259 

Miller 166 

Elliott 61 

Miller  in  wrong  box -- 32 

259 


MILLER   VS.    ELLIOTT.  549 

Both  supervisors  made  the  following  return  (p.  665) : 

Whole  luimber  for  member  of  Cougress 927 

Elliott 61 

Miller 166 

227 
STRAWBERRY  FERRY  (21). 

Contestant  claims  nothing  at  this  poll,  and  very  properly,  because 
there  is  no  proof  that  any  of  his  tickets  were  found  in  a  wrong  box. 
The  supervisor,  Edward  A.  Jenkins,  page  41,  says,  "2^1  Presidential 
electors  Republican  tickets  were  found  in  the  Congressional  box."  On 
this  the  majority  give  contestant  21  votes  that  he  never  claimed. 

We  now  call  attention  to  some  errors  in  statements  made  by  the  ma- 
jority.   At  foot  of  page  13  they  say  : 

In  every  instance  but  one  the  shifting  of  boxes  is  shown. 

In  the  following  instances  there  is  either  direct  proof  by  Republican 
supervisors  that  the  boxes  were  not  shifted,  or  there  is  an  entire  ab- 
sence of  proof  on  the  subject,  to  wit: 

Bloomingdale,  Cades,  Black  Mingo,  Bethel  Cross  Roads,  Fort  Motte, 
Ten  Mile  Hill,  Adams  Run,  Calamus  Pond,  and  Haut  Gap.  This  does 
not  include  cases  where  the  shifting  was  denied  by  the  managers. 

Another  statement  of  the  majority  (p.  14): 

The  United  States  supervisors,  present  at  all  the  polls  when  this  destruction  oc- 
curred, kept  an  account  of  the  numier,  and  by  that  means  we  are  able  to  ascertain  with 
reasonable  certainty  the  whole  number  lost. 

The  majority  say  the  supervisors  "kept  an  account  of  the  number." 
Out  of  the  t^yenty- seven  precincts  there  are  just  two.  Camp  Ground  and 
Haut  Gap,  at  which  the  testimony  shows  a  tally  was  made  at  the  time, 
with  no  proof  that  it  was  preserved,  and  one  only,  the  majority's  pre- 
cinct, Strawberry  Ferry,  at  which  an  account  was  kept  and  used  at  the 
examination,  and  at  that  precinct  there  was  no  ijroof  of  Congressional 
votes  being  in  the  wrong  box.  Upon  a  review  of  the  whole  testimony 
we  can  not  believe  that  the  House  will  sustain  the  majority  in  giving 
contestant  these  1,000  votes,  or  any  part  of  them. 

GLOVERVILLE. 

The  majority  next  rejects  the  whole  vote  at  Gloverville  precinct,  in 
Colleton  County,  because  "  the  box  was  dishonestly  stuifed  b3^  some- 
body," and  though  there  is  no  competent  evidence  on  this  point  as  to 
who  did  it,  yet,  taking  it  for  granted  that  the  sworn  officers  of  the  law 
were  the  culprits,  puts  on  the  stand  E.  M.  Chisholm,  one  of  the  United 
States  supervisors  at  that  precinct,  and  who  Mr.  J.  H.  Dodd,  a  mer- 
chant of  Centerville  in  that  precinct  and  county,  says,  "  is  looked  upon 
by  the  leading  men  of  the  neighborhood  as  the  most  notorious  liar  in  it," 
and  by  his  unsupported  evidence  alone  deprives  Elliott  of  113  votes 
ar,d  Miller  20  votes,  notwithstanding  the  following  evidence  from  repu- 
table sources : 

J.  H.  DoDD,  a  witness  in  behalf  of  the  contestee,  being  duly  sworn,  says: 
Question.  State  your  age,  occupation,  residence,  and  where  you  were  on  the  6th 

day  of  Nov.  last. — Answer.  I  am  36  years  old  ;  merchant,  and  reside  at  Centerville  ; 

I  was  at  Gloversville  voting  precinct. 
Q.  Did  you  vote  at  the  election  held  at  the  Gloversville  precinct  on  the  6th  day  of 

Nov.  last  for  a  Representative  in  Congress? — A.  I  did. 


550  MILLER    VS.    ELLIOTT. 

Q.  Did  yon  act  in  any  oflScial  capacity  that  day?  If  so.  state  in  -what  capacity. — 
A.  I  was  one  of  tlie  managers  of  the  Congressional  box. 

Q.  At  what  time  was  the  polls  opened? — A.  At  7  o'clock  in  the  morning. 

Q.  Was  the  voting  during  the  day  peaceable  and  unmolested  ? — A.  Yes. 

Q.  Who  was  the  other  two  managers? — A.  C.  P.  Chisholm  and  J.  E.  J.  Biyaut. 

Q.  Did  you  open  and  expose  the  box  before  the  voting  commenced,  as  required  by 
law? — A.  We  did. 

Q.  Were  you  present  and  did  yea  assist  in  the  canvass  of  the  votes  at  the  close  of 
the  polls? — A.  I  was  present  and  assisted  in  the  canvass  of  the  votes. 

Q.  Please  state  how  the  votes  were  canvassed,  and  with  what  result. — A.  The  tirst 
thing  we  done  was  to  open  the  boxes  and  count  the  votes,  putting  them  in  a  pile  on 
the  table.  Finding  there  was  more  votes  than  there  was  names  on  the  poll-list,  we 
put  all  the  votes  back  into  the  box.  One  manager  tvirned  bis  back  and  drew  out  the 
overplus  and  destroyed  them.  Then  the  remainder  was  taken  from  the  box  atid 
counted,  showing  a  hundred  and  thirteen  for  William  Elliott  and,  I  think,  twenty- 
one  for  Miller. 

Q.  In  the  examination  of  the  votes  that  you  found  in  the  box,  did  you  tind  any 
folded  together?  If  so,  state  what  you  found  and  the  kind  of  tickets  you  so  fonnd. — 
A.  I  found  the  Congressional  ticket  with  Miller's  name  on  it  folded  with  the  Presi- 
fjeatial  ticket. 

Q.  From  the  appearance  of  those  tickets  would  yon  say  that  they  had  been  voted 
by  the  same  man  ? — A.  I  should  say  that  they  were  voted  by  the  same  person. 

Q.  Who  acted  as  supervisor  of  the  Republican  party  at  Gloversville  precinct? — A. 
E.  M.  Chisolm. 

Q.  Was  he  present  when  the  polls  were  opened? — A.  He  was  not. 

Q.  Do  you  know  where  he  was? — ^A.  Yes;  he  was  across  the  road,  standing  around 
the  fire,  about  50  yards  away. 

Q .  Did  you  know  before  the  polls  were  opened  who  the  Republican  supervisor  was  ? 
A.  I  did  not. 

Q.  When  were  you  first  informed  that  E.  M.  Chisolm  represented  the  Republican 
party  in  the  capacity  of  supervisor?  A.  Some  little  time  alter  the  voting  had  started 
I  walked  out  to  the  fire  and  asked  E.  M.  Chisolm  if  he  knew  who  was  the  super- isor. 
He  said  that  he  was  supervisor.  I  then  asked  him  why  he  did  not  go  to  hia  post.  Ho 
said  he  would  be  in  after  a  little. 

Q.  Did  he  come  in  after  a  little  ?    A.  He  did. 

Q.  What  did  he  say  when  he  came  in  ?  A.  He  asked  me  if  I  refused  to  let  him  see 
in  the  box.  I  told  him  I  could  not  let  him  see  in  the  box,  as  the  voting  had  started. 
He  said  that  was  all  right,  and  that  he  would  make  a  note  of  it.  I  then  invited  him  to 
take  a  seat  at  the  table,  which  he  did,  and  staid  there  the  greater  part  of  the  day  ; 
at  times  he  put  another  man  in  his  place  and  went  out,  as  he  said  he  wanted  to  take 
a  little  exercise. 

Q.  Then  the  poll-list  kept  by  the  supervisor  was  the  work  of  others  as  well?  A.  It 
was,  as  several  had  a  hand  in  keeping  Chisolm's  poll-list. 

Q.  Did  Chisolm  occupy  a  place  in  the  room  while  the  votes  were  being  counted  ? — 
A.  Yes ;  and  also  Abram  Smalls. 

Q.   Do  you  know  A.  B.  Smalls? — A.  Yes. 

Q.  Was  he  at  the  polls  that  day ;  if  so,  what  did  he  do? — A.  He  stood  outside  at 
the  window,  and  folded  votes  and  gave  them  to  voters  as  they  came  up. 

Q.  Did  he  remain  at  the  window  during  the  entire  day?-— A.  No;  he  was  only 
there  a  portion  of  the  time. 

Q.  Did  you  see  Elliott  tickets  in  circulation  among  the  voters  that  day  ? — A.  I  did. 

Q.  Did  you  see  any  colored  men  distributing  Elliott  tickets? — A.  Yes;  there  was 
three  or  four  colored  men  that  were  working  in  that  direction  that  day. 

Q.  Were  these  colored  men  that  you  saw  distributing  Elliott  tickets  men  of  some 
iniinence  with  the  colored  people  ? — A.  They  were  the  leading  colored  men  in  that 
section  of  country. 

Q.  During  the  day  did  A.  B.  Smalls  apply  to  any  one  of  the  managers  for  the  correct 
time  of  day? — A.  He  asked  me  three  times  during  the  day  to  let  him  set  his  watch 
by  mine.     One  time  I  took  his  watch  in  my  hand  and  it  was  four  hours  out  of  the  w.iy. 

Q.  Do  you  or  do  you  not  know  whether  the  number  of  white  voters  residing  in 
Glover  Township  largely  exceeds  twenty-five  ? — A.  I  think  the  white  voters  in  Glover 
Township  number  about  38  or  40. 

Q.  Are  you  not  intimately  acquainted  with  the  white  men  who  voted  at  Glovers- 
ville precinct  that  day? — A.  I  am  personally  acquainted  with  every  one. 

Q.  Did  any  white  man  vote  for  State  and  county  officers  on  the  6th  of  Nov.  last 
and  refuse  to  vote  for  William  Elliott  for  Congress? 

(Counsel  for  contestant  objects  to  the  question  because  witness  was  not  at  the  State 
polls  in  any  oflScial  capacity,  and  can  not  state  except  on  information  given  by  the 
voters.) 

A.  That  there  was  no  white  man  who  refused  to  vote  for  William  Elliott  that  day, 
I  can  not  say  as  to  the  State  and  county  polls,  as  I  was  not  a  manager  there. 


MILLER   VS.    ELLIOTT.  551 

Q.  Do  you  or  do  yon  not  know  that  every  -white  man  that  you  saw  at  the  precinct 
that  day  who  was  legally  entitled  to  vote  voted  for  Elliott? — A.  I  know  they  did. 

Q.  Do  you  know  a  white  man  residing  in  Gloversville  Township  by  the  name  of  H. 
B.  Ackeman  ? — A.  I  do. 

Q.  Did  he  not  vote  at  Gloversville  precinct  for  William  Elliott  on  the  6th  of  Nov. 
last? 

(Counsel  for  contestant  objects  to  the  question  upon  the  ground  that  the  testimony 
of  the  voter  mentioned  is  the  best  evidence.) 

A.  He  did. 

Q.  Did  any  white  man  ofiFer  to  vote  for  William  Elliott  that  day  and  was  rejected 
by  the  managers? — A.  Yes;  William  Holts. 

Q.  When  the  tickets  were  given  to  the  colored  voters  on  the  outside  of  the  building 
by  A.  B.  Small,  was  it  possible  for  E.  M.  Chisolm  to  have  watched  the  people  to  whom 
they  were  given  and  see  that  the  same  tickets  were  deposited  in  the  box  by  the  people 
to  whom  they  were  given? — A.  It  was  impossible  ;  it  was  on  account  of  the  position 
he  occupied  in  the  room,  and  further  that  the  tickets  were  given  out  at  the  window, 
and  the  voters  very  often  took  the  ticket  and  went  off  in  the  crowd  and  knocked 
about  awhile  and  then  came  back  and  voted. 

Q.  After  the  polls  had  been  closed  and  the  Congressional  box  had  been  opened  were 
any  tickets  found  folded  with  a  twist  which  could  not  have  been  voted  through  the 
opening  in  the  lid  of  the  box? 

(Counsel  for  the  contestant  objects  upon  the  ground  that  the  question  is  leading.) 

A.  No,  none. 

Q.  Did  you  find  any  tickets  twisted  at  all? — A.  None;  the  tickets  were  all  folded. 

Q.  When  the  polls  were  formally  closed  was  anybody,  white  or  colored,  ordered  to 
leave  the  room? — A.  No  one  was  ordered  to  leave  the  room,  but  just  requested  that 
the  crowd  should  fall  back  so  as  to  give  them  room  to  work.  I  invited  A.  B.  Small 
to  come  up  to  the  table  and  witness  the  count. 

Q.  Is  it  true  that  you  or  any  one  of  the  managers  told  the  white  men  present  to 
crowd  around  the  table? — A.  We  did  not ;  there  was  no  such  language  used  that  night. 

Q.  Is  it  true  that  the  managers  indulged  in  a  general  drunk  while  the  count  was 
being  condncted  and  endeavored  to  get  the  Republican  supervisor  drunk  ? — A.  There 
was  no  one  under  the  influence  of  liquor  that  day  except  A.  B.  Smalls.  I  gave  him 
nothing  but  one  glass  of  ginger  ale.  Neither  of  the  managers  invited  E.  M.  Chisolm 
to  drink. 

Q.  After  the  polls  were  closed  is  it  true  that  yourself  and  C.  P.  Chisolm  went  off 
and  had  a  private  consultation  as  to  how  the  votes  were  to  be  counted? — A.  We  did 
not. 

Q.  While  Chisolm  was  calling  the  names  from  the  tickets  did  he  at  any  time  throw 
one  of  the  tickets  over  his  ear  and  then  pretend  that  it  was  a  mistake  ? — A.  He  did 
not. 

Q.  Did  you  at  any  time  during  the  day  see  A.  B.  Smalls  at  the  State  and  county 
polls? — A.  I  did;  he  voted  a  man  at  the  Congressional  poll  and  then  told  him  that 
he  must  go  to  the  Democratic  boxes  and  vote  there.  I  followed  Smalls  and  the  voter 
to  the  State  and  county  polls,  and  saw  Smalls  folding  the  Democratic  tickets  and  the 
voter  putting  them  in. 

Q.  Is  it  true  that  when  C.  P.  Chisolm  drew  the  tickets  from  the  box  that  he  turned 
his  back  but  not  his  eyes? — A.  His  face  was  turned  away  from  the  box. 

Q.  What  opportunities  were  offered  the  Republican  supervisor  for  witnessing  the 
voting  during  the  day  and  the  count  after  the  polls  had  closed  ?— A.  He  was  invited 
to  take  a  seat  at  the  table  on  which  the  ballot  boxes  were  placed,  and  when  we  went 
to  count  the  votes  he  occupied  the  same  position  at  the  table  as  he  had  at  times  dur- 
ing the  day.  As  I  called  out  the  votes  I  asked  him  to  notice  each  vote  and  to  see 
if  it  was  right.  He  told  me  that  he  could  see,  and  Abram  Smalls  was  in  a  foot  of  my 
elbow  and  saw  every  vote  as  I  called  them  out  to  the  tally-keeper. 

Cross-examined  by  W.  F.  Myek,  counsel  for  contestant : 

Q.  How  long  have  you  been  living  in  Gloversville  Township? — A.  I  have  been  liv- 
ing on  the  township  line  all  my  life. 

Q.  Are  you  a  voter  at  Gloversville  precinct  ? — A.  I  am. 

Q.  Are  you  or  not  an  officer  in  the  Democratic  Club  in  Gloversville  ? — A.  I  am  an 
executive  officer,  if  you  call  that  an  officer. 

Q,  Keeping  stores  at  two  most  popular  points  in  the  precinct  you  know  pretty  well 
the  white  and  colored  voters  of  the  precinct,  do  you  not  ? — A.  I  do. 

Q.  Who  were  present  when  you  asked  Chisolm  who  was  Republican  supervisor? — 
A.  C.  P.  Chisolm,  A.  B.  Small  and  his  brotlier. 

Q.  As  the  i)oll  was  open,  there  being  but  three  managers,  a  majority  of  them  then 
was  interviewing  Chisolm,  the  Republican  supervisor,  away  from  the  poll? — A.  The 
place  that  the  boxes  were  arranged  were  in  full  view  of  the  fire.  All  persons  having 
voted  that  were  present,  white  and  colored,  C.  P.  Chisolm  and  myself  walked  out  to 
the  fire. 


652  MILLER   VS.    ELLIOTT. 

Q.  The  boxes  being  in  fall  view  of  those  who  were  standing  at  the  fire,  do  you 
mean  to  say  that  the  men  at  the  fire  did  not  know  the  polls  were  open  and  voting 
going  on  until  oaid  voting  was  over  and  you  went  out  to  them  ?— A.  I  take  it  as  a 
matter  of  coarse  that  they  knew  that  voting  was  going  on  as  several  persons  had 
come  in  and  voted, 

Q.  State  how  many  up  to  this  time  had  voted  ? — A.  About  four,  or  maybe  five. 

Q.  Please  name  them. — A.  I  think  Nero  Williams  was  one,  my  brother  and  myself. 
I  was  not  acting  as  secretary,  therefore  did  not  charge  my  memory  with  it. 

Q.  Whose  store  was  it,  and  who  occupied  it  at  the  time? — A.  It  was  my  store,  in 
partnership  with  Hill. 

Q.  Uid  you  or  not  stay  at  the  store  on  the  night  preceding  the  election  ? — A.  I  did. 

Q.  Who  stayed  with  you?— A.  The  clerk,  W.  F.  Hill,  J.  B.  Dodd,  and  C.  P.  Chisolm. 

Q.  Was  not  Nero  Williams  in  there? — A.  Not  until  the  polls  had  been  opened  next 
morning. 

Q.  Do  the  men  above  named  always  sleep  there,  or  was  it  the  custom  at  the  time 
mentioned  for  them  to  do  so  ? — A.  No.  Myself  and  brother  had  been  on  business  down 
to  Cottageville,  and  until  a  late  hour  in  the  night.  As  it  was  nearer  to  my  Gloversville 
store  than  to  my  home,  and  knowing  that  we  would  have  to  go  down  there  early  next 
morning,  we  called  in  and  spent  the  night  with  the  clerk  at  the  store. 

Q.  Then  you  can  name  those  only  who  were  in  the  store  that  voted  before  E.  M. 
Chisolm  was  notified? — A.  I  told  you  that  Nero  Williams  came  as  soon  as  the  poll 
was  opened.     He  did  not  st^y  there  that  night. 

Q.  What  direction  did  he  come  from,  and  what  direction  did  he  go  Jtfter  voting?— 
A.  I  did  not  see  where  he  came  from  or  where  he  went  to. 

Q.  How  did  the  voters  approach  the  poll  to  vote,  through  the  store  or  at  the  win- 
dow ? — A.  Most  of  them  voted  at  the  window.     Some  came  inside  and  voted. 

Q.  You  say  you  know  all  of  the  white  Democratic  voters  of  Gloversville.  Will 
you  please  give  the  names  of  all  or  some  of  them  who  voted  that  day? — A.  H.  B. 
Ackeman,  T,  S.  Ackeman.  I  can't  remember  all  the  names  except  referring  to  the 
list,  bat  they  were  nearly  all  present. 

Q.  As  you  can  not  tell  all  who  voted,  can  you  tell  all  who  were  not  present? — 
A.  I  don't  remember  who  was  not  present  of  the  white  Democrats. 

Q.  You  stated  that  you  know  pretty  well  white  and  colored  voters  of  this  pre- 
cinct. Will  you  state  the  names  of  the  colored  Democrats? — A.  1  don't  wish  to  do 
so,  as  it  would  only  bring  down  the  wrath  of  the  Republican  leaders  upon  their 
heads. 

Q.  Are  these  colored  Democrats  members  of  your  club,  or  are  they  organized  into 
a  separate  club  ? — A.  Some  of  them  are;  others  are  not.  I  mean  our  club;  other 
colored  Democrats  are  not  members. 

Q.  Are  not  C.  P.  Chisolm  and  Nero  Williams  Democrats  and  known  to  your  com- 
munity ?— A.  They  are. 

Q.  They  being  known  as  Democrats  by  white  and  colored,  never  have  been  mo- 
lested or  wrath  brought  down  upon  them,  why  can  not  you  give  the  names  of  other 
colored  Democrats? — A.  Because  I  have  been  informed  that  they — Chisholm  and 
Williams — have  been  threatened  with  lynching  by  the  Republican  leaders  in  the 
neighborhood. 

Q.  Did  yon  ever  hear  a  Republican  leader  make  this  threat,  or  are  only  giving  what 
you  heard  others  say  ? — A.  I  am  telling  what  I  know  to  be  true. 

Q.  How  do  you  know  it  to  be  true? — A.  By  information  received  from  responsible 
parties. 

Q.  Will  you  name  them  ? — A.  I  will  not  name  them  unless  I  am  forced  to  do  it. 

Q.  Have  these  men  ever  been  lynched  ? — A.  No  ;  but  they  have  been  cussed  and 
abused  and  threatened  with  lynching. 

Q.  Do  they  not  live  in  the  most  thickly-populated  settlement  of  the  colored  people 
in  Grover  Township  ?— A.  No  ;  they  live  in  the  upper  part  of  the  township,  and  most 
of  their  neighbors  are  near  relatives. 

Q.  Then  I  suppose  these  two  men  have  to  be  accompanied  with  a  guard  to  protect 
them  from  lynchers? — A.  No;  they  do  not.  I  have  known  them  to  go  around  to- 
gether for  protection  to  each  other,  and  have  been  forced  to  carry  arms  for  their  pro- 
tection. 

Q.  Is  Chisolm  not  an  active  worker  for  the  Democratic  party  ? — A.  Yes  ;  he  ex- 
presses his  opinion  generally. 

Q.  Name  the  colored  men  whom  you  saw  going  amongst  the  colored  voters  with 
Elliott  tickets  on  election  day  last  trying  to  induce  them  to  vote  the  Democratic 
ticket  ? — A.  I  can  not  give  their  names  in  justice  to  those  colored  men. 

Q.  You  said  in  your  direct  that  those  men  were  openly  working  amongst  the  col- 
ored voters  for  the  Elliott  ticket ;  they  were  not  molested  then  ;  why  do  you  refuse 
now  to  give  their  names  ? — A.  Because  at  that  time  all  the  white  strength  was  out  as 
a  reason  why  they  were  not  molested ;  things  are  quiet  now,  and  I  don't  wish  to 
bring  them  to  any  trouble  this  late  day 


MILLER   VS.    ELLIOTT.  553 

Q.  Did  not  the  Republicans  down  there  know  these  men  ? — A.  I  don't  know 
whether  they  did  or  not,  but  I  did. 

Q.  Please  state  if  Smalls  or  Chisolm  did  not  compare  time  with  yonr  watch  when 
you  went  to  the  lire. — A.  Nothing  said  about  time  at  the  fire  ;  but  when  E.  M.  Chis- 
olm came  he  said  it  lacked  15  minutes  to  six  by  A.  B.  Small's  watch  ;  and  then  it  was 
some  time  after  seven  by  mine. 

Q.  Was  that  the  time  Small's  watch  was  four  hours  behind? — A.  No. 

Q.  What  manager  drew  the  votes  from  the  box  while  counting  them  ? — A.  C.  P. 
Chisolm. 

Q.  Did  he  lay  them  on  the  table,  or  put  them  in  another  box  ?— A.  He  drew  them 
out,  called  the  name,  passed  them  on  to  me  and  A.  B.  Smalls,  and  the  two  of  us 
looked  over  them. 

Q.  When  you  requested  the  crowd  to  fall  back  or  withdraw,  what  was  the  lan- 
guage used  by  you? — A.  I  do  not  remember  the  exact  language,  but  wanted  Smalls 
and  Chisolm  to  take  seats  at  the  table  and  assist  in  counting  the  votes. 

Q.  Were  they,  or  either  of  them,  a  manager? — A.  They  were  not,  but  I  wanted  to 
show  the  Republicans  present  a  free  ballot  and  a  fair  count. 

Q.  As  you  wanted  to  show  them  a  free  ballot  and  a  fair  count,  how  is  it  that,  of 
the  number  of  Republicans  around  the  poll,  and  the  very  few  Democrats,  only  one 
Republican  was  admitted  and  all  the  Democrats  who  were  present? — A.  The  Repub- 
licans all  congregated  in  front  of  the  store,  and  did  not  seem  to  want  to  come  in. 
There  was  only  one  or  two  white  Democrats  that  staid  in  the  room  when  we  first 
started  to  count;  but  when  the  managers  of  the  State  and  county  boxes  got  through 
they  came  in  and  took  back  seats. 

Q.  Did  vou  and  the  other  managers  sit  at  the  same  table  with  E.  M.  Chisolm? — 
A.  We  did. 

Q.  Did  the  managers  have  a  good  view  of  the  voters  as  they  approached  the  win- 
dow to  vote? — A.  Those  of  us  who  sat  at  the  side  of  the  table  had  full  view  of  the 
voters  as  they  came  to  the  window, 

Q.  The  managers  having  been  able  to  see  the  voters  sitting  at  the  same  table  with 
E.  M.  Chisolm,  how  do  you  account  for  his  inability  to  see  as  well  as  you?— A.  Be- 
cause I  sat  at  +he  side  of  the  table,  while  he  (E.  M.  Chisolm)  sat  at  the  end  of  the 
table,  which  put  hira  two  feet  away  from  the  window. 

Q.  Are  you  well  acquainted  with  E.  M.  Chisolm? — A.  I  have  known  him  all  my 
life. 

Q.  He  is  very  active  and  earnest  as  a  Republican,  is  he  not? — A.  I  can't  say.  He 
is  so  tricky  that  I  don't  know. 

Q.  Being  tricky,  as  you  say,  yet  with  this  qualification,  standing  in  full  view  of  a 
lone  building  where  every  voter's  attention  was  centered,  the  early  nmrning  being 
the  most  interesting  time  of  voting,  with  men  passing  in  and  out,  Chisolm,  as  you 
say,  did  not  see  or  know  the  poll  was  open.  Am  I  to  understand  that  yon  outtricked 
hira  on  that  occasion  ? — A.  No ;  you  did  not  understand  me  to  say  so.  I  think  he  lies 
when  he  says  he  did  not  know  the  poll  was  open. 

Q.  Though  a  manager  at  the  Congressional  poll,  you  actively  extended  to  the  State 
and  county  poll  the  scrutinizing  of  voters  and  rallies,  the  knowledge  of  colored  men 
being  openly  Democrat  and  rallying  for  the  Democratic  ticket,  but  you  refuse  to  tell 
the  name  or  names  of  colored  men  who  voted  for  Elliott  on  the  6th  of  Nov.  last,  ex- 
cepting Nero  Williams  and  C.  P.  Chisolm,  do  you? — A.  The  colored  men  who  voted 
the  Democratic  ticket  that  day  made  me  promise  faithfully  that  I  would  not  give 
thom  away,  as  they  did  not  want  the  ill  will  of  their  neighbors,  and  at  the  same  time 
wanted  to  do  what  they  thought  was  to  their  best  interest.  At  the  time  I  went  out 
to  the  State  and  county  boxes  and  saw  A.  B.  Smalls  voting  a  colored  man,  there  was 
no  voting  going  on  at  that  time  at  the  national  box  and  the  boxes  were  left  in  charge 
of  two  managers  and  the  Republican  supervisor. 
Re-direct : 

Q.  E.  M.  Chisolm,  a  witness  on  the  part  of  the  contestant,  heretofore  testified  that 
when  he  entered  the  poll  in  the  morning  the  name  of  W.  F.  Hill  was  given  to  him 
by  the  managers  as  the  one  who  had  already  voted,  and  that  later  during  the  day  the 
said  Hill  presented  himself  and  said  that  he  had  not  voted,  and  was  then  permitted 
to  vote  by  the  managers ;  is  that  true? — A.  That  is  not  true  ;  Hill  did  not  vote  but 
once,  as  will  be  seen  by  the  poll-list. 

Q.  How  long  have  you  known  Mr.  Chisolm  ? — A.  I  have  known  him  all  my  life. 

Q.  Are  you  intimately  acquainted  with  the  general  reputation  for  truth  of  E.  M. 
Chisolm  in  the  community  in  which  he  lives  ? — A.  I  am. 

Q.  What  is  that  reputation  ? — A.  As  I  have  before  stated,  his  is  tricky  and  not  to 
be  trusted  ;  he  is  looked  upon  by  the  leading  men  in  the  neighborhood  as  the  most 
notorious  liar  in  it. 

Q.  Being  a  merchant  and  residing  in  the  immediate  vicinity  of  Glloversville  pre- 
cinct do  you  not  know  the  sentiment  of  the  colored  voters  regarding  their  political 
leaders? — A.  I  do. 


554  MILLER    VS.    EL«  TOTT. 

Q.  Was  T.  E.  Miller  popular  or  nnpopnlar  with  tbe  colored  people  of  that  comma- 
nity? — A.  From  what  I  have  learned  from  leading  Republicans  in  the  township,  I 
suppose  he  was  very  unpopular. 

Q.  Do  you  know  the  reasons  which  they  assigned  for  his  unpopularity? — A.  Those 
whom  I  heard  say  anything  about  it  seemed  to  thiuk  that  he  had  not  dealt  fairly  with 
Rob't  Smalls,  ex-Congressman,  and  they  did  not  like  a  mulatto  nohow. 

Q.  Do  you  not  know  that  a  great  many  colored  people  at  that  precinct  remained 
away  from  the  polls  for  the  reasons  above  given  ? — A.  That  is  what  I  have  been  in- 
formed, and  know  there  was  nothing  like  a  full  vote  polled. 

Crossexamication : 

Q.  Who  were  the  colored  men  that  said  they  were  down  on  Miller  because  of  his 
treatment  to  Smalls  and  his  condition  birth  ?— A.  I  don't  think  that  I  am  liberty  to 
make  public  the  parties  who  held  this  conversation  in  my  store,  as  I  think  what  one 
hears  under  his  own  roof  is  sacred. 

Q.  You  claim  now  to  be  scrupulous  of  telling  conversation  because  of  their  sacred- 
ness  ;  why  did  you  tell  of  the  sacred  conversation  that  occurred  in  your  store  by  two 
leading  colored  men  in  reference  to  Miller  under  your  own  declaration  ;  is  it  less 
sacred  to  give  the  name  as  I  asked? — A.  I  have  only  made  public  what  I  believe  to 
be  the  general  sentiment  of  the  colored  people,  but  at  the  same  time,  not  having  di- 
vulged the  names  of  the  parties  holding  the  conversation,  I  have  done  them  no  harm. 

Q.  As  the  men  held  the  conversation  in  a  public  store,  asking  no  injunction  as  to 
secrecy,  how  came  you  to  regard  it  more  sacred  than  they  ? — A.  They  were  the  only 
persons  in  the  store  at  that  time.  I  was  in  the  office  writing,  and  1  don't  suppose 
they  intended  me  to  hear  what  they  were  talking  about. 

Q.  Seeming  to  be  an  expert  in  matters  relating  to  the  standing  of  men  and  the  sen- 
timents of  the  people  in  your  community,  you  mean  to  say  that  the  opinion  of  the 
entire  Republican  vote  down  there  must  be  governed  by  the  sacred  conversation  had 
in  your  store  by  two  men? — A.  As  political  leaders  always  understand  the  sentiment 
of  their  party,  I  took  it  for  granted  the  two  leading  Republicans  know  the  sentiment 
of  their  township. 

Q.  Are  you  or  are  you  not  postmaster  at  the  Round  or  Centerville  P.  O.  ? — A.  I  ara 
postmaster  at  Round. 

Q.  Is  that  now  in  the  district  represented  by  W.  Elliott  in  Congress? — A.  I  think 
it  is. 

Q.  You  have  expressed  a  thorough  knowledge  of  things  in  Glover  precinct ;  I  desire 
you  to  state  if  the  Round  P.  O.  is  not  in  the  Seventh  Congressional  District,  now 
represented  by  William  Elliott  ? — A.  I  told  you  it  was. 

J.  B.  DODD,  being  duly  sworn,  says : 

Question.  State  your  age  and  residence. — Answer.  I  am  28  years  old  and  reside  at 
Gloversville  precinct. 

Q.  Where  were  you  on  the  6th  day  of  Nov.  last  ? — A.  At  Gloversville  voting  precinct. 

Q.  Were  you  at  the  precinct  at  the  time  that  the  Congressional  poll  was  opened  ? — 
A.  I  was  ;  I  was  in  the  room  when  the  poll  was  opened. 

Q.  Were  the  boxes  opened  for  the  scrutiny  of  those  who  wished  to  see  before  the 
voting  commenced  ? — A.  Yes. 

Q.  Did  you  vote  in  the  Congressional  box  that  day,  and  if  so,  whom  did  you  vote 
for  for  Congress? — A.  I  did;  and  voted  for  Elliott. 

Q.  Did  you,  at  any  time  during  the  day,  see  A.  B.  Smalls  at  the  State  and  county 
poll? — A.  Yes;  J  was  manager  of  that  poll. 

Q.  What  was  A.  B.  Smalls  doing  there  when  you  saw  him?~A.  He  came  to  that 
poll  with  a  colored,  who  seemed  to  be  a  very  ignorant  man,  and  told  him  he  must 
vote  in  all  of  those  boxes,  and  folded  Democratic  tickets,  giving  him  one  to  poll  into 
each  box,  which  the  man  did;  stated  as  he  left  that  he  was  going  to  bring  more 
votes  to  the  boxes  at  which  he  was  manager.  He  was  about,  the  State  and  county 
polls  several  times  that  day,  but  never  brought  any  more  voters. 

Q.  When  you  voted  for  William  Elliott  at  the  national  poll  did  you  not  have  your 
registration  certificate? — A.  Yes;  I  had. 

Q.  Have  you  that  certificate  with  you  now  ? — A.  I  have  not;  as  I  never  carry  it  ex- 
cept to  elections. 

Q.  Do  you  remember  about  how  long  ago  it  was  issued  to  you? — A.  Not  exactly; 
about  four  years,  I  think. 

Q.  Do  you  remember  its  serial  number? 

(Counsel  for  contestant  objects,  as  the  original  certificate  is  the  proper  evidence.) 

A.  No.  90,  I  think. 

Cross-examination : 
Q.  Who  acted  with  you  as  managers  at  the  State  and  county  precinct  on  election 
day  last  ? — A.  T.  S.  Ackermau,  and  H.  B.  Ackerman  a  portion  of  the  time.    The  reg' 


MILLER    VS     ELLIOTT.  555 

nlar  manager  did  not  come,  and  as  soon  asH.  B.  Ackerman  got  there  we  api>oinied 
liim  to  act  with  us. 

Q.  Yon  say  a  jiortion  of  the  time  H.  B.  Ackerman  acted;  that  is,  when  did  lie 
ipach  the  poll  to  act  with  you  ? 

(Counsel  for  coutestee  objects  to  the  question  upon  the  ground  that  it  is  irrelevant; 
tliis  examination  has  reference  to  the  conduct  of  the  election  at  the  Federal  poll,  and 
not  the  State  and  county.) 

A.  About  ten  o'clock,  as  well  as  I  remember. 

Q.  When  you  opened  the  State  and  county  poll,  did  you  open  the  boxes  to  allow 
the  voters  to  see  that  they  were  all  right? 

(Objection  as  above.) 

A.  Yes. 

Q.  At  what  time  or  what  o'clock  was  this  done? — A.  About  7  o'clock. 

Q.  How  far  was  the  State  and  county  poll  from  that  of  Congressional? — A.  From 
75  to  100  yards. 

Q.  Am  I  to  understand  that  you  got  up,  dressed,  and  voted  at  the  Federal  poll  in 
the  building  in  which  you  slept  the  night  preceding,  saw  the  managers  examine 
box  or  boxes,  you  and  others  voted  then,  and  yet  you  got  to  the  State  and  county 
poll  and  opened  »t  7  o'clock  a.  ra.  ? — A.  In  the  first  place  I  did  not  say  I  opened  at  7, 
but  about  7,  and  further  I  did  not  wait  to  see  anybody  vote  but  myself,  and  the  time 
that  it  took  me  to  walk  75  yards  could  not  be  considered  difference  enough  to  make 
the  time  illegal. 

Contestant's  case,  as  heretofore  stated,  rests  on  the  testimony  of  E.  M. 
Chisolm,  who,  as  J.  H.  Dodd  says,  "is  looked  upon  by  the  leading  men 
in  the  neighborhood  as  the  most  notorious  liar  in  it."  In  one  place  he 
says  about  his  report  as  supervisor : 

I  simply  could  make  one  reference,  and  that  was  that  the  poll-list  only  called  for 
134  votes,  and  that  there  were  229  ballots  in  the  box. 

In  another  place  he  says  : 

I  reported  several  objections;  one  is  that  the  manager,  while  pretending  to  scratch 
his  head,  threw  a  vote  over  his  back. 

Again  he  says : 

I  remember  giving  the  total  number  of  votes  cast,  and  at  the  bottom  I  made  a 
statement  as  to  how  the  true  number  of  votes  were  not  given,  making  a  statement  of 
the  irregularities. 

And  here  is  the  return  that  he  did  make  (p.  661): 

EXHIBIT  A. 

Return  of  the  election  held  at  Gloverville  precinct,  Colleton  County,  November  6,  1888. 

The  whole  number  of  votes  given  for  member  of  Congress  was 134 

Of  which  William  Elliott  received 113 

Of  which  Thonms  E.  Miller  received 21 

Of  which  received .' 

Of  which  received 

We,  the  undersigned  supervisors,  certify  that  the  above  is  a  correct  return  of  the 
votes  cast  at  the  election  held  at  Gloverville  precinct,  of  Colleton  County,  on  the  6th 
day  of  November,  1888. 

E.  M.  Chisolm, 

"Supervisor. 
I  certify  that  the  foregoing  is  a  true  copy  of  the  original  return  now  on  file  in  my 
office. 

Samuel  T.  Poinier, 

Chief  Supei'visor, 

According  to  his  own  account  he  did  not  before  election  day  notify 
the  managers  that  he  was  supervisor,  and  even  on  election  day  did  not 
notify  them  nntil  "  some  time"  after  he  had  seen  one  of  them,  but  con- 
tented liimself  with  hanging  around  a  fire,  when,  according  to  J.  H. 
Dodd,  he  had  to  be  asked  who  was  supervisor,  and  even  after  being  told 
that  the  polls  were  opened,  and  asked  wliy  he  did  not  go  to  his  post, 


556  MILLER    VS.    ELLIOTT. 

said  "  he  would  be  in  after  a  little."  When  the  ballots  are  being  counted 
be  does  not  examine  them  because  he  was  "keeping  a  poll-list."  Tlie 
testimony  indicates  very  strongly  that  Chisolm  was  simply  laying  the 
foundation  for  the  charge  that  he  was  not  allowed  to  examine  the  box, 
and  thereby  defeat  the  election.  If  his  demand  to  examine  the  box  after 
the  voting  had  commenced  had  been  complied  with,  then  we  would 
have  had  a  fervid  complaint  based  on  that  fact.  The  only  testimony 
explaining  the  surplus  of  ballots  in  the  box  shows  that  Kepublican 
tickets  were  found  folded  together,  Congressional  and  electoral.  Noth- 
ing is  said  about  the  vote  in  the  electoral  box.  After  the  performance 
at  Grahamville,  under  contestant's  eye,  what  may  not  be  expected  from 
Republican  leaders  in  South  Carolina?  Uncontradicted  testimony 
shows  that  leading  colored  men  at  the  precinct  were  favoring  contes- 
tee's  election,  on  account  of  contestant's  treatment  of  ex-Congressman 
Smalls,  and  two  uncontradicted  witnesses  prove  that  A.  B.  Smalls,  pos- 
sibly a  relative,  who  was  relied  on  to  distribute  contestant's  tickets, 
was  openly  pushing  the  Democratic  ticket  at  the  State  polls.  Contes- 
tant undertook  to  swear  the  voters  as  to  their  votes,  but  gave  up  the 
attempt  after  examining  three  witnesses. 

GEEEN  POND. 

The  returns  in  this  precinct  gave  Elliott  216,  Miller  52. 

l!«iotwith  Stan  ding  these  returns  by  the  sworu  officers  of  the  law,  the 
majority,  on  the  strength  of  the  testimony  of  one  Brown,  who  was  one 
of  the  United  States  supervisors  at  that  poll,  and  against  the  testimony 
of  five  reputable  citizens,  managers  and  clerks  of  the  election,  200  votes 
are  taken  from  Elliott  and  200  added  to  Miller,  thus  giving  Miller  400 
votes  off  hand  at  that  precinct. 

In  order  that  the  House  may  have  a  just  conception  of  the  character 
of  evidence  employed  in  this  case  to  unseat  Mr.  Elliott,  we  give  here 
some  sample  extracts : 

Cross-examination  of  Emanuel  Youton  (p.  186) : 

Question.  When  were  you  born;  wliat  yearf — Answer.  I  can  not  tell  the  year. 

Q.  How  many  ballot-boxes  were  at  the  poll  that  day  ? — A.  There  were  two. 

Q.  Did  each  of  the  boxes  have  labels  on  them  ?— A.  Yes. 

Q.  What  did  those  labels  contain  If — A.  Don't  know. 

Q.  Then  yon  don't  know  whether  you  put  your  ticket  for  T.  E.  Miller  in  the  box 
labeled  Presidential  electors  or  the  box  labeled  Representative  in  Congress  ? — A.  I 
do  not  know. 

Cross-examination  of  July  Gadsden  (p.  187) : 

Q.  How  many  tickets  did  you  vote  on  the  6th  of  Nov.  last  ? — A.  I  voted  one  ticket. 

Q.  How  many  ballot-boxes  were  at  the  precinct  at  which  you  voted  ? — A.  Two. 

Q.  Then  you  did  not  vote  in  but  one  of  them  ? — A.  But  one. 

Q.  Did  you  vote  that  one  ballot  in  the  box  labeled  Rep.  in  Congress  or  the  box 
labeled  Presidential  electors? — A.  In  the  Congressional  box. 

Q.  Who  did  you  vote  for  President?— A.  Harris. 

Q.  Now,  you  testified  a  few  minutes  ago  that  you  did  not  vote  but  one  ballot  on 
Nov.  6th  last,  and  that  you  voted  that  one  ballot  for  T.  S.  Miller  for  Congress  in  the 
box  labeled  Rep.  in  Congress,  and  now  yon  say  that  you  voted  for  Harris  for  Presi- 
dent. How  do  you  account  for  that? — ^A.  Singleton  read  the  ticket  that  Miller  was 
on  it  for  Congress,  and  I  voted  that. 

Cross-examination  of  Prince  Warley  (p.  201) : 

Q.  Did  yoif  notice  any  diflferenco  in  the  construction  in  the  two  boxes  of  the  pre- 
cinct?— A.  I  notice  that  one  hole  was  large  and  the  other  small  in  the  two  boxes. 

Q.  On  which  side  was  the  box  located  containing  the  large  hole? — A.  On  the  right. 

Q.   How  many  ballots  did  you  vote  on  that  day? — A.  Two. 

Q.  For  what  officers  were  those  two  ballots  voted? — A.  One  was  for  President  and 
the  other  for  Miller. 


MILLER    VS.    ELLIOTT.  557 

Q.  What  was  Miller  rnnning  for,  governor?— A.  He  did  not  run  for  goveruoT;  I 
have  forgoiteu  what  he  ran  for. 

Cross-examination  of  Bristow  Mitchell  (p.  208) : 

Q.  Did  you  see  Chapman  vote  on  on  that? — A.  I  saw  him  vote. 

Q.  Did  you  read  the  ticket  that  Chapman  voted  for  President?— A.  Yes;  I  read 
his  ticket, 

Q.  Did  he  vote  for  Grant  or  Garfield  for  President ?— A.  Yes;  he  did  vote  for  Gar- 
field. 

Q.  Did  the  boxes  at  the  precinct  that  day  have  labels  on  them?— A.  Yes;  they  had 

labtfis. 

Q.  What  did  these  labels  contain?— A.  The  labels  was  to  show  you  the  difference 
for  Presidential  electors  and  Congressman. 

Q.  Will  you  swear  of  your  own  knowledge  that  you  voted  for  Miller  in  the  box 
labeled  Presidential  electors?— A.  No;  I  voted  for  Miller  in  the  one  on  the  right  with 
the  large  hole. 

Q.  Did  you  vote  for  the  same  man  for  President  that  Chapman  voted  for? — A.  I 
did  not  vote  for  the  same  man. 

Q.  Did  you  vote  for  Grant  or  Sherman  for  President? — A.  No. 

Q.  Who  did  you  vote  for  for  President? — A.  I  can  not  remember  the  names  that 
were  on  the  ticket,  but  I  voted  for  the  electors  on  the  ticket. 

Q.  Are  you  willing  to  swear  of  your  own  knowledge  that  the  word  Kepublican  was 
printed  on  your  ticket?— A.  No;  that  was  not  there. 

Q.  Did  you  vote  for  Cleveland  for  President  ? — A.  I  did. 

Cross-examination  of  Wm.  Alston  (p.  208): 

Q.  Who  did  you  vote  for  for  President,  Cleveland  or  Conklin  ? — A.  I  voted  for 
President  at  large. 

Q.  Then  you  just  went  it  blind,  for  nobody  in  particular? — A.  No;  I  voted  for  no- 
body in  particular. 

Q.  You  voted  for  Congressman  in  the  same  way,  did  you  not  ? — A.  Yes. 

Q.  How  many  ballots  did  you  vote  on  that  day  ? — A.  I  voted  two. 

Q.  Did  you  vote  them  both  for  the  same  officer? — A.  Yes. 

Q.  Did  you  vote  them  both  in  the  box  on  the  right  witi\  the  big  hole  in  it  T — A.  No, 
I  did  not. 

Q.  Did  you  vote  them  both  in  the  box  on  the  left  with  the  little  hole  in  it? — A. 
No,  sir;  I  put  one  in  each  box. 

Q.  Which  box  had  Miller's  name  for  Congress  on  it,  the  one  on  the  right  or  left? — 
A.  The  one  on  the  left  with  the  small  hole  for  Miller. 

Q.  Then  you  voted  for  Miller  in  the  small  hole  ? — A.  Yes. 

Q.  In  which  box  did  you  vote  for  Miller,  on  the  right  or  on  the  left  ? — A.  I  voted 
in  the  right  for  Miller. 

Q.  For  what  oflBce  was  the  President  running? — A.  For  Senator. 

Q.  In  which  box  did  you  vote  for  Senator  ? — A.  In  the  right-hand  box. 

Cross-examination  of  Jeffrey  Smith  (p.  204) : 

Q.  You  really  did  not  have  but  one  ballot  that  day  ? — A.  Only  one. 

Q.  You  have  already  sworn  that  you  did  not  vote  but  one  ballot  that  day,  and  that 
was  for  Congressman.  Why  did  you  not  vote  for  President  also? — A.  May  have  been 
two  tickets  in  one  for  what  I  know;  he  gave  me  the  ticket,  saying  it  was  Republi- 
can, and  I  voted  it. 

Q.  What  did  you  put  in  the  other  box — the  box  with  the  little  hole  ? — A.  I  put 
them  in  just  as  they  were  given  to  me ;  if  there  were  two  tickets  I  put  them  in  the 
box  with  the  big  hole. 

Cross-examination  of  Paris  Smalls  (p.  205): 

Q.  What  office  was  Harrison  running  for  ? — A.  I  understand  he  was  running  for 
President. 

Q.  What  office  was  T.  E.  Miller  running  for ;  was  he  running  for  U.  S.  Senator? — 
A.  I  do  not  know. 

Q.  If  you  do  not  know  what  office  he  was  running  for,  how  did  you  testify  a  few 
Elinutes  ago  that  you  voted  for  him  for  Congress? — ^A.  By  Chapman's  instructions. 

Cross-examination  by  W.  B.  Gruber,  esq.,  of  Jake  Brown  (p.  206): 

Q.  Who  did  you  vote  for  for  President  on  November  6th  last? — ^A.  I  -voted  for  Mil 
ler. 

Q.  Who  did  you  vote  for  for  Congress  on  November  6th  last? — A.  I  voted  for  no* 
body  but  Miller. 

Q.  How  many  ballots  did  you  vote  on  November  6th? — A.  Two. 


558  MILLER    VS.    ELLIOTT. 

Q.  Did  yon  vote  both  of  those  ballots  in  the  same  box  for  the  same  candidate  ? — A. 
One  on  the  right  and  one  on  the  left. 

Q.  You  have  already  testified  that  yon  saw  but  sue  box,  and  that  you  voted  in 
that  for  Miller;  now  in  what  kind  of  a  machine  did  you  dejiosit  your  other  ballot? 
A.  There  were  two  holes  there. 

Cross-examination  of  Denibo  Washington  (p.  210 ): 

Q.  How  many  ballots  did  you  vote  that  day  ? — A.  I  voted  two. 

Q.  Did  you  vote  for  President? — A.  1  voted  for  Miller  at  large. 

Q.  Did  you  vote  for  Miller  for  President  ? — A.  Yes,  sir. 

Q.  How  many  ballots  did  you  vote  for  Miller  for  President  ? — A.  I  cast  two,  but  I 
had  an  understanding  <if  the  diifoience. 

Q.  Did  you  vote  for  Elliott  or  Smalls  as  Representative  in  Congress  t — A.  I  voted 
for  Smalls. 

Q.  Who  did  you  vote  for  for  Vice-President,  Cleveland  or  Thurmanf — A.  I  did  not 
vote  for  either. 

Q.  Who  did  you  vote  for  for  Vice-President? — A.  I  do  not  under.'^tand  the  men's 
names,  as  I  can  not  read. 

Q.  Didn't  you  vote  for  Miller  for  Vice-President  ? — A.  least  my  vote  for  Miller,  but 
as  I  can  not  read  myself  I  do  not  know. 

Q.  If  you  can  not  read  yourself  how  did  you  happen  to  testify  just  now  that  you 
voted  for  MiLer  for  Pr.  sident? — A.  So  far  as  I  got  the  ballot  to  cast  I  ask  the  name, 
and  they  gave  me  Miller's  name. 

Cross-examination  of  George  Morgan  (p.  212) : 

Q.  Did  you  notice  any  difference  in  the  construction  of  the  two  boxes  ? — A.  No,  sir. 

Q.  Then  how  did  you  know  which  box  in  which  you  should  deposit  your  ticket  for 
Congressman! — A.  I  know  by  instruction  ;  I  put  it  in  on  the  right. 

Q.  Was  that  the  box  in  which  you  were  instructed  to  vote  for  Presidential  elector  ? 
A.  Yes,  sir. 

Q.  Was  that  also  the  box  in  which  you  were  instructed  to  vote  for  Congressman  t 
A.  Yes,  sir. 

Q.  Did  you  vote  as  yon  were  instructed  T — A.  Yes,  sir. 

Q.  Did  you  vote  for  Miller  for  President? — A.  Yes,  sir. 

Q.  Did  you  vote  for  Miller  for  U.  S.  Senate?— A.  Yes,  sir. 

Cross-examination  by  W.  B.  Gruber,  esq.,  of  P.  Catties  (p.  219)*. 

Q.  Then  you  did  not  know  whether  you  were  voting  correctly  or  not? — A.  I  voted, 
as  I  think  was  proper  to  my  advantage. 

Q.  Did  you  vote  for  T.  E.  Miller  as  a  presidential  elector? — A.  That's  what  I  did. 

Q.  Did  you  notice  any  difference  in  the  construction  of  the  boxes  ? — A.  I  did  ;  one 
box  had  a  small  hole  and  the  other  hole  was  larger. 

Q.  Was  the  small  hole  on  the  right  or  left  ? — A.  On  the  left. 

Q.  Did  yon  vote  for  T.  E.  Miller  ia  the  small  or  large  hole? — A.  In  the  large  hole. 

Q.  Did  you  vote  in  the  large  hole  for  President  Sherman  !— A.  In  the  large  hole  for 
President  Sherman. 

Q.  Did  you  vote  in  the  large  hole  or  the  small  for  V.  President  Cleveland  ?— A.  In 
the  small  hole. 

Cross-examination  of  Sam  Eutledge  (p.  220) : 

Q.  Will  you  swear  that  you  actually  voted  for  Miller  as  Presidential  elector  ? — A. 
Yes,  sir. 

Q.  Will  yon  swear  that  you  actually  voted  for  Harrison  for  Congress? — A.  No,  sir. 

Q.  Did  you  vote  for  Morton  for  Vice  President? — A.  No,  sir. 

Q.  Did  you  vote  for  Harrison  for  President? — A.  Yes,  sir. 

Q.  Did  you  notice  any  difference  in  the  construction  of  the  boxes? — A.  Yes;  one 
box  had  a  larger  hole  than  the  other. 

Q.  Did  you  vote  for  Harrison  for  Congress  in  the  big  or  the  little  hole?— A.  Vote 
for  Harrison  in  small  hole,  but  did  not  vote  for  him  for  Congress. 

Q.  Was  the  small  hole  on  the  right  or  the  left? — A.  On  the  left  when  I  voted. 

Q.  Will  yon  swear,  of  your  own  knowledge,  that  that  was  the  box  in  which  you 
voted  for  Miller  ? — A.  Yes. 

Cross-examination  of  Charles  Nichols  (p.  221): 

Q.  Will  you  swear  that  you  voted  for  Miller  for  President  ? — A.  I  did  not  know  what 
he  was  running  for.     I  took  the  ticket  and  voted  as  instructed. 

Q.  For  whom  did  you  vote  for  President — Elliott  or  Miller? — A.  Miller. 

Q.  Did  you  vote  two  ballots  or  tickets  in  each  of  the  boxes  at  the  precinct? — A.  One 
in  each. 


MILLER    VS.    ELLIOTT.  559 

Q.  Did  you  notice  any  difference  in  the  construction  of  the  boxea  at  the  preciuct  ? — 
A.  One  box  had  a  larger  hole  than  the  other.  The  right-hand  box  I  voted  for 
Miller  in. 

Q.  Having  voted  for  Miller  in  the  right-hand  box,  will  you  swear  that  you  voted 
lor  Elliott  in  the  left? — A.  I  voted  in  the  right-hand  box. 

Q.  In  which  of  them  did  you  vote  for  Elliott — the  right  or  the  left  ? — A.  The  left. 

Q.  For  what  office  did  you  vote  for  Miller — President  or  Senator? — A.  President. 

Q.  For  what  office  did  you  vote  for  Sherman — President  or  Congress  ? — A.  I  don't 
know  what  office  he  ran  for,  but  I  vote  two  papers. 

Q.  What  kind  of  papers  did  you  vote — registration  certificates  or  letter  receipts  ? — 
A.  r  voted  a  paper  like  print. 

Cross-examination  of  Sam  Frazer  (p.  222) : 

Q.  Did  the  boxes  at  the  precinct  have  labels  on  them? — A.  Yes;  some  were  torn. 

Q.  Did  those  labels  indicate  in  which  box  you  were  to  deposit  your  ballot  for  the  . 
officers  for  whom  you  were  voting? — A.  No;  it  did  not.     I  was  looking  for  that  pur- 
posely. 

Q.  If  the  labels  did  not  indicate  in  which  box  you  were  to  deposit  your  ballots  it 
was  therefore  im})Ossible  for  you  to  vote  correctly,  was  it  not? — A.  They  told  me  be- 
fore going  in  that  the  box  with  the  small  hole  was  for  Congress  and  the  big  hole  for 
President. 

Q.  In  which  hole  did  you  vote  for  Miller,  the  big  or  the  little  hole?— A.  I  voted 
for  Miller  in  the  big  hole. 

Q.  Miller  was  ranning  for  President,  was  he  not? — A.  Miller  was  running  for  Presi- 
dent. 

Cross-examination  of  Ben  Green  (p.  225) : 

Q.  In  which  box  did  you  vote  for  Miller  for  Presidential  elector,  the  right  or  the 
left,  the  big  or  the  little  hole  ?— A.  In  the  large  hole. 

Q.  Then  if  you  voted  for  Miller  for  Presidential  elector  in  the  big  hole,  in  which 
hole  did  you  vole  for  Elliott  for  Congress  ? — A.  Did  not  vote  in  either  for  Elliott. 

Q.  For  what  office  was  Miller  running,  President  or  Senator? — A.  Miller  was  run- 
ning for  President. 

Q.  Did  you  vote  for  him  for  that  office? — A.  'Twas  my  intention  to  vote  for  him 
for  what  he  was  running  for. 

Q.  For  whom  did  you  vote  for  Congressman,  Sherman  or  Harrison? — A.  I  voted 
for  Miller. 

Q.  Are  you  willing  to  swear  that  you  voted  for  Elliott  or  Sherman  for  President  ? — 
A.  I  voted  for  Miller. 

Q.  How  many  ballots  did  you  vote  that  day  ? — A.  I  voted  one  ticket  that  day. 

Q.  Did  you  vote  that  one  ticket  for  President  ? — A.  Yes. 

Q.  Did  J  on  vote  for  Miller  for  President? 

(Objected  to  on  ground  that  witness  has  fully  answered  the  question ;  it  is  mis- 
leading and  intended  to  materially  injure  contestant.) 

A.  I  voted  for  Miller  for  President. 

Cross-examination  of  Sharper  Gillings  (p.  228): 

Q.  Were  you  born  in  1784  or  1785?— A.  In  1775;  but  you  must  speak  plain,  I  am  an 
Englishman. 

Q.  Did  you  come  over  to  this  country  in  the  Mayflower  or  originally  with  Chris- 
topher Columbus? — A.  I  was  born  right  here.  , 

Q.  How  is  it  then  that  you  call  yourself  an  Englishman? — A.  Because  that's  the 
way  my  mother  and  father  learn  me  the  English  language  and  in  politics. 

Q.  Did  you  vote  for  Miller  for  President  in  the  big  or  little  hole? — ^A.  I  voted  for 
Miller  for  President  in  the  big  hole. 

Q.  In  which  hole  did  you  vote  for  Elliott,  in  the  big  or  little  one? — A.  I  voted  for 
all  who  was  along  with  Mr.  Miller;  they  just  told  me  and  I  voted. 

Q.  In  which  hole  did  you  vote  for  Mr.  Sherman  for  President,  the  big  or  the  little 
hole  ? — A.  All  what  was  with  Mr.  Miller  went  in  the  big  hole. 

Q.  Then  you  did  not  vote  in  the  little  hole  at  all,  did  you? — A.  I  voted  in  the  big 
hole  on  the  right  and  the  little  one  on  the  left. 

Q.  Did  you  vote  for  Miller  in  the  little  hole  on  the  left? — A.  I  voted  for  Miller  on 
the  right. 

Q.  Who  did  you  vote  for  on  the  left  and  what  office  was  he  running  fort — A.  I 
don't  know. 

Cross-examination  of  Jackson  Pinkney  (p.  233) : 

Q.  To  what  religious  denomination  does  the  Bepublican  party  belong — African, 


560  MILLER    VS.    ELLIOTT. 

Methodist,  or  Baptist  T — A.  I  believe  the  Republican  party  belong  to  every  denom- 
ination. 

Q.  Are  you  willing  to  testify  that  the  words  "  Republican  i»arty  "  were  printed  on 
the  ticket  that  yon  voted  that  day  ? — A.  Yes,  the  word  was  priated  on  the  ticket. 

Q.  Who  did  you  vote  for  for  President,  Beck  or  Elliott? — A.  Beck  and  Harrison. 

Q.  Did  you  vote  for  boWi  Beck  and  Harrison  for  President? — A.  The  same  ticket  I 
voted  for  Beckman  for  V.  President  I  voted  for  Harrison. 

Q.  What  did  you  vote  for  Mr.  Sherman  for.  Congressman  or  governor? — A.  I  vote 
for  Mr.  Miller  for  Congressman. 

Q.  Who  did  you  vote  for  governor  ?  Did  you  not  vote  for  Sherman  ? — A.  I  did  not 
vote  for  any  governor. 

Q.  You  know  who  you  voted  for,  do  you  not? — A.  I  do. 

Q.  For  what  office,  then,  did  you  vote  for  Sherman  ? — A.  I  did  not  vote  for  Sherman 
for  any  office. 

,    Q.  In  which  box  did  you  deposit  your  ballot  for  Miller? — A.  The  one  to  the  right, 
with  the  big  hole,  for  Miller. 

Q.  Was  that  the  box  labelled  "Representative  in  Congress?" — A.  Yes,  that  is  the 
box, 

Q.  Are  you  willing  to  testify  that  the  name  of  Beck  and  Harrison  were  printed  on 
the  ticket  which  you  voted? — A.  I  am  willing. 

Cross-examination  of  Sam  Simmons  (p.  230): 

Q.  In  which  hole  did  you  vote  for  Miller  for  President — the  big  or  the  little  one? — 
A.  The  large  one  on  my  right. 

Q.  In  which  hole  did  you  vote  for  Elliott  for  Congress — the  big  or  the  little  one  T — 
A.  I  voted  in  the  little  hole. 

Cross-examination  of  April  Ford  (p.  233): 

Q.  How  many  ballots  did  you  vote  that  day  ? — A.  Two. 

Q.  Did  you  vote  them  for  Miller  for  Congress  ?— A.  1  vote  them  for  Miller  for  Con- 
gress. 

Q.  Did  you  notice  any  difterence  in  the  construction  of  the  boxes  at  the  precinct  ? — 
A.  No. 

Q.  For  what  office  was  Wm.  Elliott  running? — A.  I  do  not  know. 

Q.  Did  you  not  vote  for  him  for  President? — A,  No  ;  I  did  not. 

Q.  Are  you  willing  to  testify  that  you  actually  voted  for  Miller  as  Presidential 
elector  ? — A.  Yes. 

Q.  Who  did  you  vote  for  as  Representative  from  this  district  in  the  51st  Congress — 
Harrison  or  Cleveland  ? — A.  I  did  not  vote  for  Harrison  or  Cleveland  for  Congress. 

Q.  Are  you  willing  to  swear  that  you  did  not  vote  for  Harrison  or  Cleveland  on 
that  day? — A.  Yes;  I  am  willing  to  swear  I  did  not. 

Q.  Did  you  vote  in  both  of  the  boxes  at  the  precinct  that  day? — A.  Yes. 

Q.  Did  you  vote  two  ballots  in  each  of  the  boxes? — A.  No;  one. 

Q.  And  each  of  these  ballots  contained  the  name  of  your  friend,  T.  E.  Miller? — A. 
Yes. 

Cross-examination  of  Baalara  Burnet  (p.  234) : 

Q.  If  I  were  to  call  the  name  of  the  man  for  whom  you  voted  for  Congressman 
from  this  district,  would  you  know  it  ? — A.  Yes. 

Q.  Was  it  Harrison  ? — A.  Yes,  sir. 

Q.  If  I  were  to  call  the  name  of  the  man  for  whom  you  voted  in  the  box  for  Presi- 
dent, would  you  know  it  ? — A.  Yes. 

Q.  Was  it  Sherman  ? — A.  No. 

4    Was  itGarJaeld?— A.  No,  sir. 

Q.  Was  it  Miller? — A.  Yes,  sir. 

Cross-examination  of  Philip  Robinson  (p.  236) : 

Q.  Did  you  read  Harrison's  name  on  your  ticket? — A.  No,  sir. 

Q.  Then  you  did  not  vote  for  Harrison  on  that  day  ? — A.  Yes,  I  voted  for  Harrison. 

Q.  Then  yon  were  mistaken  were  you  not  when  you  said  just  now  that  you  did  not 
read  his  name  on  your  ticket  ? — A.  I  am  not  mistaken,  because  I  did  not  read  his 
name. 

Q.  When  Chapman  read  your  ticket"  to  you  did  he  read  the  name  of  Harrison  ? — A. 
Yes,  sir. 

Q.  Are  you  willing  to  testify,  of  your  own  knowledge,  that  you  voted  for  Miller  in 
the  box  labeled  Presidential  electors  ? — A.  Yes,  sir. 

Cross-examination  of  Baalam  Ford  (p.  238) : 

Q.  Who  did  you  vote  for  for  President,  Sherman  or  Rob't  Smalls  ?- 
vote  for  either  one- 


MILLER    VS.    ELLIOTT.  561 

Q.  Are  you  willing  to  swear  that  you  voted  for  Miller  in  the  box  labeled  for  Presi- 
dential electors? — A.  Yes,  sir. 

Cross  examination  of  Simon  Fraser  (p.  242) : 

Q.  If  you  voted  for  Miller  for  Congress,  for  what  office  did  you  vote  for  W.  F. 

yers,  governor  or  President? — A.  I  can  not  read  aud  can  not  tell. 

Q.  Will  you  swear  that  the  words  Republican  party  were  printed  on  the  ticket 
which  you  voted  for  Miller  for  Presidential  elector? — A.  Yes,  sir. 

Q.  Will  you  swear  that  you  voted  for  Miller  in  the  box  labeled  Presidential  elec- 
tors ? — A.  Yes,  sir. 

Cross-examination  of  Bencher  Morgan  : 

Q.  Who  did  you  give  the  tickets  to  that  Smith  gave  to  you  ?— -A.  I  put  them  in  the 
box. 

Q.  Are  you  willing  to  testify  that  the  words,  "  Repiiblicaa  Party  Rally  'round  the 
Poll "  was  printed  on  the  ticket  you  voted  ? — A.  I  can  not  tell. 

Q.  Are  you  willing  to  swear  that  nobody  read  your  ticket  to  you  ? — A.  No  one  read 
them. 

Q.  Then  you  don't  know  who  you  voted  for  for  Presidential  electors  and  Representa- 
tive in  Congress  ? — A.  I  do  not. 

Cross-examination  of  Ben  Harlbeck  (p.  244) : 

Q.  If  you  voted  for  Miller  for  Congress,  for  what  office  did  you  vote  for  W.  F.  Myers, 
governor  or  President? — A.  President. 

Q.  Are  you  willing  to  swear  that  you  voted  for  Miller  for  Presidential  elector  in 
the  box  with  the  large  hole  ? — A.  No. 

Q.  Are  you  willing  to  swear  that  you  voted  tor  him  for  Presidental  elector  in  the 
box  with  the  sn^all  hole  ? — A.  Yes, 

Cross-examination  of  Tony  Eobinson  (p.  248): 

Q.  Are  you  "'illing  to  swear  that  you  didn't  vote  but  one  ticket  on  the  day  of  elec- 
tion ? — A.  I  voted  two  tickets. 

Q.  Are  you  willing  to  swear  that  you  voted  for  Miller  for  Presidential  elector  ? — 
A.  For  President. 

Q.  If  you  voted  for  Miller  for  President,  for  what  office  did  you  vote  for  Cleveland ; 
gov.  or  senator  ? — A.  None. 

Cross-examination  by  W  B.  Gruber  of  Bob  Eobinson  (p.  249) : 

Q.  Are  you  willing  to  swear  that  you  actually  voted  your  registration  certificate 
for  Tom  Miller?    A.  Yes.  sir. 

Q.  Are  you  willing  to  swear  that  you  voted  for  Miller  in  the  box  for  Presidential 
electors? — A.  Yes,  1  did. 

Cross-examination  of  John  Lessington  (p.  250) : 

Q.  Will  you  swear,  on  your  honor  as  a  man,  that  you  did  not  vote  but  one  ballot 
on  the  6th  of  Nov.  last  ?    A.  One. 

Q.  In  which  box,  the  right  or  the  left,  did  you  vote  for  M.ller  for  Presidential 
elector,  the  big  or  the  little  hole? — A.  There  were  two  boxes,  one  on  the  right  and 
the  other  on  the  left,  and  just  as  Chapman  gave  me  the  tickets  I  voted  them,  as  he 
instructed ;  I  don't  know  whether  I  voted  for  him  in  big  or  little  hole. 

Q.  Will  you  swear  that  you  actually  voted  for  him  that  day  for  Presidential 
elector? — A.  Yes,  sir. 

Q.  If  you  voted  for  Miller  in  one  of  the  boxes,  who  did  you  vote  for  in  the  other? — 
A.  I  did  not  hear  the  name  of  the  man. 

Q.  Did  you  vote  in  both  of  the  boxes? — A.  Yes,  sir. 

Q.  You  have  already  sworn  that  you  did  not  vote  but  one  ballot  that  day,  now  you 
swear  that  you  voted  in  both  boxes;  will  you  explain  how  you  voted  one  ballot  in 
two  boxes? — A.  I  don't  know  how. 

Cross-examination  of  Jackey  Wragg  (p.  253) : 

Q.  Will  you  swear  positively  that  you  did  not  vote  but  one  ballot  that  day? 

(Objected  to  on  the  ground  that  the  question  is  irrelevant  to  the  issue  and  intended 
to  prolong  the  examination  for  the  benefit  of  the  contestee.) 

A.  I  voted  two  tickets. 

(Counsel  for  contestee  objects  to  counsel  for  contestant  stating  that  witness  can 
answer  as  he  answered  before.) 

Q.  For  whom  did  you  vote  for  President,  Col.  Wm.  Elliott  or  T.  E.  Miller  ? — A.  I 
voted  for  Harrison  and  Miller. 

H.  Mis.  137 36 


562  MILLER    VS.    ELLIOTT. 

Q.  Will  you  swear  of  your  own  knowledge  that  you  voted  for  both  Harrison  and 
Miller  for  President  ? 

(By  contestant. — Objected  on  the  ground  that  the  witness  has  already  answered 
the  question  ;  the  question  is  irrelevant  to  the  issue,  as  the  witness  has  testified  al- 
ready that  he  voted  for  Miller  for  Congress  and  Harrison  for  President.) 

(By  coutestee. — Objection  is  made  to  above  objection  on  ground  that  it  is  unfair 
to  recall  to  recollection  of  witness  what  he  lias  formerly  testified  to  for  the  purpose 
of  enabling  witness  to  answer  correctly,  and  for  the  further  reason  that  the  witness 
has  not  answered  that  he  voted  for  Harrison  for  President  separately,  but  both  Mil- 
ler and  Harrison  together  for  the  office  of  President.) 

A.  I  voted  for  Harrison  for  Congressman. 

Cross-examiuatiou  of  Win.  Boggs  (p.  254) : 

Q.  Will  you  swear  that  you  voted  for  Slierman  for  President  in  the  left-hand  box 
with  the  small  hole? 

(Objected  to  on  ground  that  the  question  will  benefit  neither  contestant  nor  con- 
testee,  and  is  irrelevant  to  the  issue.) 

A.  Miller  for  President. 

Cross-examination  of  Anthony  Bartlett  (p.  2G5) : 

Q.  Will  yon  swear  that  you  voted  for  Miller  in  the  box  labeled  Presidential  elect- 
ors on  the  right-hand  side  with  the  big  hole? — A.  Yes,  sir. 

Q.  Will  you  swear  that  the  words  Republican  party  were  printed  on  your  ticket 
A.  Yes,  sir. 

Q.  Will  you  swear  that  yon  voted  for  Grant,  the  Republican  nominee  for  Presi- 
dent?— A.  I  don't  know  anything  about  him. 

Q.  If  I  were  to  call  the  name  of  the  person  for  whom  you  voted  for  President  would 
you  know  it? — A.  I  don't  know,  because  I  can't  read. 

Q.  Did  you  ever  hear  his  name  ? — A.  No,  sir. 

Cross-examination  of  Moses  Field  (p.  266) : 

Q.  Will  von  swear  that  you  voted  but  one  ticket  that  day? — A.  Voted  one  ticket.' 
Q.  Will  you  swear  that  that  one  ticket  contained  the  name  of  Benj.  Harrison  for 
President  ? — A.  Yes,  sir. 

Cross-examination  of  Scipio  Campbell  (p.  268) : 

Q.  Will  you  swear  that  the  name  of  T.  E.  Miller  was  not  printed  on  the  ticket  for 
Presidential  elector? — A.  I  don't  know  whether  it  was  on  there  for  President,  Sena- 
tor, or  not. 

Q.  Will  you  swear  that  you  voted  for  Miller  for  Senator  ? — A.  Yes,  sir. 

Q.  Will  you  swear  that  you  voted  for  Harrison  in  the  box  labelled  or  marked  Rep- 
resentative in  Congress  ? — A.  Yes,  sir. 

Cross-examination  of  Toby  Elliott  (p.  269) : 

Q.  Will  yon  swear  that  you  voted  for  T.  E.  Miller  in  the  right  box  for  V.  Presd't  ? — 
A.  Yes,  sir. 

Q.  Will  you  swear  that  you  voted  for  T.  E.  Miller  in  the  box  labelled  Presidential 
elector  ? — A.  Yes,  sir. 

Cross-examination  of  Aaron  Judge  (p.  270) : 

Q.  For  whom  did  you  say  you  voted  for  President  that  day? — A.  Miller. 
Q.  Are  you  willing  to  swear  that  that  is  true  f — A.  Yes,  sir. 

Q.  Are  yon  willing  to  swear  that  yoji  put  the  ticket  containing  Miller's  name  in 
the  box  labelled  Presidential  electors? — A.  Yes,  sir. 

Cross-examination  of  Chas.  Mitchell  (p.  270): 

Q.  Are  you  willing  to  swear  that  the  name  of  T.  E.  Miller  was  actually  printed  on 
the  ticket  you  voted  for  Vice-President  ? — A.  Yes. 

Q.  Are  you  willing  to  swear  that  you  voted  for  Mr.  Miller  in  the  box  labelled  for 
that  officer? — A.  I  voted  for  Miller  in  the  left  box. 

Q.  Are  you  willing  to  swear  that  that  was  the  box  labelled  or  printed  Presidential 
electors? — A.  Yes,  sir. 

Cross-examination  of  Titus  Wright  (p.  271): 

Q.  Are  you  willing  to  swear  that  you  voted  for  T.  E.  Miller  for  Presidential 
elector,  in  the  right-hand  box  with  a  big  hole?— A.  Yes,  sir. 


MILLER    VS.    ELLIOTT.  563 

Cross-examination  of  Ambrose  Morgan  (p.  271) : 

Q.  Are  you  willing  to  swear  that  Dau'l  Fields  read  the  words  "Republican  party" 
on  yonr  ticket  ? — A.  Yes,  sir. 

Q.  Are  you  willing  to  swear  that  he  read  those  words  on  the  ticket  which  yon 
voted  for  Miller,  and  that  you  put  that  ticket  in  the  box  labelled  or  naarked  "  Presi- 
dential electors?" — A.  Yes,  sir. 

Cross-examination  of  Wm.  Huguinin  (p.  272) : 

Q.  Are  you  willing  to  swear  that  the  words  Republican  party  were  on  the  ticket 
which  you  voted  for  Miller? — A.  Yes,  sir. 

Q.  Are  you  willing  to  swear  that  you  voted  for  Miller  for  Presidential  elector  in  the 
right-hand  box  with  the  big  hole  T — A.  Yes,  sir. 

Cross-examination  of  Smith  Bowan  (p.  273) : 

Q.  Will  you  actually  swear  that  you  threw  two  tickets  in  the  box  ? — A.  I  threw  one. 
Q.  Will  you  swear  that  that  ticket  was  voted  in  the  box  for  Presidential  electors  I 
— A.  Yes,  sir. 

Cross-examination  of  Mooner  Washington  (p.  273) : 

Q.  Did  you  have  your  specks  on  day  of  election,  but  haven't  got  them  to-day  ? — A. 
Yes,  and  I  can  not  "read  without  them. 

Q.  Will  you  swear  that  you  voted  the  ticket  with  Miller's  name  on  it  in  the  box 
labelled  Presidential  electors  ? — A.  Yes. 

The  contestee  examined  O.  P.  Williams  (p.  SQ9),  manager;  M.  A. 
Draudy,  clerk  (p.  371);  Sam'l  Driggs,  constable  (373);  B.  H.  Padgett 
(375);  J.  T.  Blanchard,  manager  (376).  In  order  to  show  that  this 
poll  was  honestly  conducted,  and  everything  on  the  part  of  managers 
was  legal  and  fair,  their  testimony  will  be  given: 

O.  p.  WILLIAMS,  a  witness  in  behalf  of  the  contestee,  being  duly  sworn,  says : 

Question.  State  your  age,  occupation,  residence,  and  where  you  were  on  the  6th  day 
of  Nov.,  1888.— Answer.  Age,  33  years;  merchant;  residence  at  White  Hall,  and 
was  at  Green  Pond. 

Q,  In  what  capacity,  if  any,  were  you  at  Green  Pond  on  that  day  f — A.  I  was  one 
of  t  he  managers  of  election  at  the  Federal  box. 

Q.  At  what  hour  were  the  boxes  opened?— A.  At  seven  o'clock  a.  m. 

Q.  At  what  place  at  Green  Pond  were  the  polls  held? — A.  At  Hickman's  Hotel. 

Q.  Did  the  managers  expose  the  boxes  to  those  present  when  they  opened  the 
polls?— A.  Yes. 

Q.  Did  the  voters  have  free  access  to  the  polls  during  the  entire  day,  and  did  every- 
thing pass  ofif  peaceably  and  without  hindrance? — A.  Yes. 

Q.  Were  you  present  when  the  polls  closed  * — A.  Yes. 

Q.  Was  the  cauvass  of  the  votes  made  in  accordance  with  law? — A.  Yes. 

Q.  Did  you  find  in  the  cauvass  more  votes  in  the  box  than  there  were  names  upon 
thepolllist?— A.  Yes. 

Q.  How  did  you  dispose  of  the  excess  of  votes  ? — A.  Mr.  Blanchard  and  Mr.  Rice 
counted  the  votes  and  disposed  of  the  excess. 

Q.  Did  they  blindfold  or  did  some  one  turn  their  back  and  draw  the  excess? — A. 
Yes;  Mr.  Draudy  drew  them  with  his  back  turned  to  the  box. 

Q.  At  the  close  of  the  polls,  who  were  permitted  to  remain  in  the  building  during 
the  count  and  canvass  of  the  votes?— A.  The  managers  wore  present  and  the  super- 
visor, J.  F.  Brown,  and  some  others;  I  do  not  now  remember  their  names.  The  room 
was  very  small  and  would  not  admit  of  many  persons  being  in  there. 

Q.  It  has  been  tesified  to  that  Mr.  Rice,  one  of  the  managers,  during  the  count 
took  quantities  of  the  tickets  or  ballots  and  tore  them  up.  Is  that  true  ? — A.  No,  it 
is  not. 

Q.  Do  you  know  that  a  quantity  of  tickets  with  the  name  of  William  Elliott  were 
distributed  and  given  out  on  the  day  of  election  ? — A.  Yes. 

Q.  Are  you  well  acquainted  with  the  colored  people  who  live  in  that  vicinity  and 
vote  at  the  Green  Pond  precinct? — A.  I  am. 

Q.  Did  you,  prior  to  the  last  election,  know  that  there  was  a  strong  sentiment  ex- 
isting amongst  the  colored  people  against  Thomas  E.  Miller?  If  so,  state  their  rea- 
sons as  gathered  by  you  from  your  intercourse  and  dealings  with  them  ? 

(Objected  to  as  leading.) 

A.  Well,  the  seutinieut  was  this,  that  they  preferred  Smalls;  if  not  Smalls,  they 
wanted  a  white  man,  as  Miller  was  neither  one  nor  the  other,  and  they  frequently 
cited  Mackey. 


564  MILLER    VS.    ELLIOTT. 

Q.  Then  you  know  that  the  colored  people  did  not  desire  Miller  to  represent  them 
in  Congress? — A.  Tliat  is  my  impression,  gathered  from  my  dealings  with  them. 

Q.  Did  you  find  on  opening  the  Congressional  box  any  tickets  folded  together  ? — 
A.  Mr.  Blanchard  and  Mr.  Rice  took  them  out;  I  did  not. 

Q.  How  long  after  the  polls  had  opened  was  it  before  J.  F.  Brown,  the  supervisor, 
made  his  appearance? — A.  I  don't  remember  the  exact  time,  but  it  was  after  the 
polls  had  opened ;  I  sent  for  him ;  I  thought  he  was  in  the  house. 

Q.  Did  he,  Brown,  make  a  demand  on  the  managers  to  open  the  boxes  and  let  him 
see  in  them  ? — A.  He  did  not ;  1  suggested  to  him  that  if  he  desired  it  I  would  let  him 
see  in  the  boxes;  that  the  hour  had  arrived  for  opening  the  polls  and  I  could  not  wait. 
Brown  replied  and  said  it  made  no  difference  and  declined  to  insist  on  the  boxes  be- 
ing opened. 

Cross-examined : 

Q.  Did  you  or  not  stay  in  the  house  in  which  the  voting  was  held  the  night  preced- 
ing said  voting  ? — A.  We  got  there  very  late  that  night  and  laid  down  and  took  a 
rest. 

Q.  Who  else  besides  you  were  in  the  house  that  night  ?  Please  name  them. — A.  Mr. 
Rice,  Mr.  Blanchard,  Draudy,  and  Dreggers.  If  there  was  any  one  else  in  the  house 
I  don't  know. 

Q.  What  relation  had  these  gentlemen  or  any  of  them  to  the  election  that  was  con- 
ducted the  next  day  T — A.  Mr.  Blanchard  and  Rice  were  managers  and  Mr.  Draudy 
was  acting  as  clerk ;  the  others  I  don't  think  had  anything  to  do  with  it. 

Q.  Who  was  the  Dem'^cratic  supervisors  ? — A.  We  had  none. 

Q.  Did  you  and  the  other  managers  stay  in  the  house  until  time  to  open  the  poll  at 
seven  o'clock? — A.  I  did,  but  Mr.  Rice  and  Blanchard  were  out  a  few  moments  and 
returned  immediately. 

Q.  Locking  yourselves  up  in  the  polling  place  the  night  preceding  the  election  and 
opening  the  doors  that  morning  without  publicly  notifying  the  voters  who  had 
gathered  around,  and  taking  care  not  to  notify  J.  F.  Brown,  the  supervisor,  until  after 
the  voting  had  commenced,  will  yon  here  under  oath  say  that  you  were  carrying  out 
the  laws  governing  you  as  manager. 

Q.  As  you  did  not  admit  citizens  to  the  room  during  the  count  because  it  was  small, 
why  did  you  and  other  managers  order  the  windows  and  doors  closed,  thus  shutting 
ont  the  view  of  a  number  of  citizens  who  were  quietly  looking  on  ? — A.  I  did  not  or- 
der the  windows  shut,  nor  do  I  think  any  of  the  managers  ordered  them  sbiit.  As  to 
the  doors,  they  had  to  be  closed  to  prevent  the  crowd  from  coming  and  disturbing  us 
during  the  count. 

Q.  Will  you  deny  that  the  window  was  closed  and  the  back  door  opening  into  the 
room  in  which  you  were  conducting  the  count? — A.  I  don't  know  that  the  windows 
■were  closed ;  I  won't  say  they  were  not  closed. 

Q.  Do  you  not  know  that  the  front  door  was  open  and  a  constable  placed  thereat 
during  the  count  t — A.  I  do  not  know.  I  don't  think  there  was  any  one  at  the  door 
during  the  count. 

Q.  This  front  door  led  through  a  passage  to  the  room  in  which  you  conducted  the 
count? — A.  Yes. 

Q.  Do  you  know  the  number  of  Democratic  votes  at  the  Green  Pond  poll  ? — ^A.  I  do 
not. 

Q.  Are  you  not  largely  acquainted  down  there? — A.  I  am  very  well  known  down 
there. 

Q.  Can't  you  give  an  approximation  of  the  vote  ? — A.  I  can  not. 

M.  A.  DRAUDY,  being  duly  sworn,  says: 

Q.  State  your  age,  occupation,  residence,  and  where  you  were  on  the  6th  day  of 
Nov.  last? — A.  Age,  36  ;  farmer;  reside  at  Cook's  Hill,  Verdur  Township,  and  was  at 
Green  Pond  polling  precinct  on  the  6th  day  of  Nov.  last. 

Q.  In  what  capacity,  if  any,  did  you  act  in  the  election  held  on  that  day  ? — A.  I  was 
clerk  of  the  board  of  managers  at  Green  Pond. 

Q.  At  what  time  were  the  polls  opened  on  that  day  ? — A.  Well,  sir,  when  we  opened 
the  polls  on  that  day  it  was  10  minutes  past  7  in  the  morning. 

Q.  Were  the  boxes  opened  and  exposed  before  the  voting  commenced? — A.  Yes, 
they  were. 

Q.  Do  yon  know  J.  F.  Brown  ? — I  do. 

Q.  How  long  after  the  polls  had  opened  was  it  before  he  came  in? — A.  I  suppose 
about  5  or  10  minutes.     I  don't  know  exactly  how  long. 

Q.  Did  the  voters  have  free  access  to  the  building  and  box  for  the  purpose  of  vot- 
ing during  the  entire  day? — A.  They  did. 

Q.  Were  you  present  when  the  polls  wore  closed? — A.  I  was. 

Q.  Did  you  assist  in  canvassing  the  vote  and  declaring  the  election? — A.  I  did. 

Q.  After  opening  the  box  did  you  find  more  than  one  ticket  folded  together?  If 
so,  state  how  many  and  whose  name  appeared  on  said  tickets  ? — A.  Well,  I  found,  on 


MILLEE   VS.    ELLIOTT.  565 

drawing  the  tickets  from  the  box  from  one  to  five  folded  together.  Thomas  E. 
Miller's  name  was  on  all  of  them  that  were  folded  together. 

Q.  After  you  had  counted  the  votes  did  you  find  more  tickets  in  the  box  than  there 
were  names  on  the  poll-list  ? — A.  We  did.  . 

Q.  Who  destroyed  the  excess  of  ballots,  and  how  were  they  destroyed  ?— A.  Mr. 
Bhmchard  and  Mr.  Rice  destroyed  them.  I  don't  know  whether  they  tore  them  up 
or  threw  them  on  the  ground. 

A.  They  blindfolded  me  and  asked  me  to  turn  my  back  and  draw,  which  I  did. 

Q.  Did  yon  prevent  any  person  or  persons  from  entering  the  building  during  the 
count? — A.  We  did.  We  were  in  a  small  room  and  the  weather  was  pretty  warm. 
We  also  had  the  train  lying  over  waiting  for  us,  and  we  could  not  have  been  bothered 
with  everybody  and  have  been  ready  for  the  train. 

Q.  It  haf  been  testified  to  here  that  Rice,  one  of  the  managers,  during  the  count 
would  take  tickets  out  of  the  box  and  tear  them  up.  Is  that  true  ?— A.  I  deny  any 
such  charges.     It  is  not  true. 

Cross-examination : 

Q.  Where  did  you  stay  the  night  preceding  the  election  ? — A.  I  staid  in  Mr.  Hick- 
man's house,  the  place  where  the  voting  was  held. 

Q.  I  suppose  you  did  that  for  the  purpose  of  being  early  to  open  the  polls,  did  you 
not  ? — A.  I  did  not. 

Q.  Why  did  you  stay  there  that  night? — A.  Well,  because  I  went  down  on  the  train 
that  night  and  found  no  other  place  to  stay.  Mr.  Hickman  is  a  particular  friend  of 
mine,  and  I  always  stop  with  him  when  I  go  to  Green  Pond. 

(Counsel  for  contestant  objects  to  the  latter  clause  of  answer,  as  it  is  stated  under 
direction  of  counsel  for  contestee,  and  not  the  original  words  of  the  witness.) 

Q.  Who  else  staid  with  you  there  that  night,  and  what  relation  had  they  to  the 
conduct  of  the  election  at  Green  Pond? — A.  Charley  Rice,  Oliver  Williams,  T.  J. 
Blanchard,  Samuel  Driggers,  Rhitt  Hickman,  Noel  Robinson.  Myself  was  clerk  for 
the  Democratic  party;  Mr.  Rice,  Mr.  Blanchard,  Oliver  Williams  was  managers. 
Mr.  Driggers,  Mr.  Hickman,  they  were  marshals  on  the  election  grounds. 

Q.  Did  thes"  parties  above  named,  or  either  of  them,  vote  at  Green  Pond  on  that 
day  ? — A.  I  can  not  say. 

Q.  You  say  you  were  clerk ;  having  kept  a  poll-list,  and  knowing  these  parties 
intimately,  you  can  not  tell  whether  or  not  they  voted? — A.  I  never  kept  a  personal 
poll-list,  but  put  all  of  my  returns  in  the  box. 

Q.  Did  you  keep  a  poll-list  at  all? — A.  Of  course  I  kept  a  poll-list ;  I  did  not  write 
it  all. 

Q.  Did  you  write  any  of  it,  and  how  much  ? — A.  I  don't  remember  how  much. 

Q.  Who  else  kept  the  poll-list  with  you? — A.  Charley  Rice;  he  acted  in  my  place 
a  good  deal  of  the  time. 

Q.  Who  acted  as  clerk  that  night  after  the  poll  was  closed  and  the  canvass  was 
being  made  ? — A.  Charley  Savage  done  that. 

Q.  Then  you  did  very  little  work  yourself,  but  relied  on  others  ?— A.  I  did  a  heap 
of  writing  during  the  day,  but  was  only  excused  for  about  5  minutes. 

Q.  Can  you  read  and  write  sufficient  to  keep  a  poll-list  ? — A.  I  can. 

Q.  How  long  after  the  boxes  were  put  on  table  before  front  door  was  opened  ? — A. 
From  2  to  5  minutes. 

Q.  What  was  then  done  after  the  door  was  open;  did  you  swear  and  vote  men  ? — 
A.  We  did. 

Q.  That  was  the  very  next  thing  in  order  then? — A.  It  is  reasonable  that  that  was 
the  next  thing  in  order. 

Q.  Where  do  Mess.  Rice,  Blanchard,  O.  P.  Williams,  Samuel  Driggers,  Rhett  Hick- 
man, Noel  Robinson,  and  yourself  reside  ?  Do  you  or  any  of  you  live  in  the  precinct 
of  Green  Pond  ? — A,  Rice  and  Blanchard  reside  in  Walterboro' ;  myself,  I  reside  about 
6  miles  below  Walterboro',  on  the  Cook's  Hill  place ;  Mr.  Diggers  reside  about  4  miles 
below  Walterboro' ;  as  to  O.  P.  Williams  I  don't  know  where  he  was  living  at  that 
time;  Noel  Robinson  at  that  time  was  living  at  Green  Pond.  It  is  a  hard  matter  to 
tell  where  Rhett  Hickman  was  living;  I  think  somewhere  near  Walterboro. 

Q.  Where  did  you  vote  on  election  day  last  ? — A.  I  did  not  vote. 

Q  Why  did  you  not  vote  at  Green  Pond,  having  been  there? — A.  The  reason  why 
I  did  not  vote  at  Green  Pond  was  because  my  certificate  was  not  for  Green  Pond  pre- 
cinct.    I  am  a  citizen  of  the  precinct  of  Walterboro'. 

Q.  You  being  a  citizan  of  the  precinct  of  Walterboro',  Mess.  Rice  and  Blanchard, 
two  of  the  managers,  living  in  that  precinct.  Mess.  Driggers  and  Hickman,  two  mar- 
shals living  in  Walterboro'  precinct — all  of  you  acting  at  Green  Pond  on  election 
day,  seems  that  there  were  no  Democrats,  or  not  enough  to  even  fill  the  few  election 
positions;  how  do  you  explain  such  a  transfer? — A.  Well,  I  don't  know. 

Q.  You  said,  amongst  other  reasons  for  not  admitting  citizens  or  some  of  them  to 
witness  the  count,  as  the  law  requires,  that  the  train  was  waiting  and  you  all  did  not 


566  MILLEE   VS.   ELLIOTT. 

want  to  be  bothered,  or  words  to  that  effect,  I  suppose  you  attached  more  importance 
to  getting  on  train  than  in  having  the  votes  pnblicly  counted? — A.  No,  we  did  not. 

Q.  Then  why  did  you  so  state  in  your  direct  testimony  T — A.  Well,  because  in  a 
close  room  a  man  don't  want  to  be  smothered  down  by  the  heat  of  other  men. 

Q.  You  want  to  avoid  being  smothered  by  the  heat  of  these  men  ;  that  being  the 
case,  under  what  sauitary  laws  did  you  find  authority  for  closing  the  back  door  and 
windows  that  night  of  election  T — A.  I  don't  know,  on  that  occasion,  that  any  doors 
or  windows  were  closed. 

Q.  Will  you  under  oath  say  positively  that  these  places  were  not  closed  during  the 
countiug  that  night? — A.  I  don't  think  they  were. 

Q,  Do  you  know  that  they  were  not  closed  ? — A.  If  I  were  called  on  to  say  posi- 
tively whether  they  were  or  not  I  should  say  they  were  not. 

Q.  Will  you  swear  positively  that  they  were  not? — A.  I  can  say  that  they  were  not 
closed  as  long  as  I  paid  any  attention. 

Q.  Will  you  swear  positively  that  those  windows  were  not  closed  that  night  during 
the  count  ?— A.  I  refuse  to  swear  any  further. 

Q.  Do  you  refuse  to  answer  the  question  above  propounded  ? — A.  I  do. 

Redirect : 

Q.  Do  you  refuse  on  the  grounds  as  explained  by  you  to  the  several  questions  re- 
lating thereto  ? 

(Objection  by  counsel  as  being  leading  and  not  in  reply  to  anything  newly  brought 
out.) 

A.  Yes,  I  do. 

Q.  You  stated  awhile  ago  that  you  did  not  know  exactly  where  O.  P.  Williams 
resided  on  the  6th  of  Nov.  last.  Do  you  not  know  as  a  fact  that  he  lived  in  the  im- 
mediate neighborhood  of  Green  Pond  station  and  was  merchandizing  near  there  for  a 
number  of  years  ? — A.  Well,  I  did  know  some  time  back,  but  right  at  that  time  I  did 
not  know. 

Q.  You  don't  know  that  Blanchard,  one  of  the  managers,  was  conductor  on  the  G. 
P.  and  W.  Railroad  and  spent  a  large  part  of  his  time  at  Green  Pond  prior  to  and 
after  Nov.  the  6th  last,  do  you  ? — A.  I  do. 

(Counsel  for  contestant  objects  to  question  and  answer  as  not  being  pertinent,  no 
question  having  been  raised  as  to  Manager  Blauchard's  occupation,  but  to  his  place 
of  residence,  whicb  this  witness  has  already  answered,  that  he  lived  at  Walterboro' 
precinct.) 

SAMUEL  DRIGGERS,  being  duly  sworn,  says: 

Question.  State  your  age,  occupation,  residence,  and  where  you  were  on  the  6th 
day  of  Nov.  last. — Answer.  Age  37  years ;  I  reside  3  miles  and  a  half  below  Walterboro' ; 
farmer  ;  I  was  at  Green  Pond  on  the  6th  day  of  Nov.  last. 

Q.  In  what  capacity,  if  any,  did  you  act  at  the  election  held  at  Green  Pond  precinct 
on  that  day  ? — A.  I  was  constable, 

Q.  Were  you  present  when  the  polls  were  closed  ? — A.  I  was  at  the  front  door,  just 
a  few  steps  from  the  box. 

Q.  Did  you  prevent  the  crowd  from  passing  or  going  in  the  room  when  the  count 
was  going  on?  If  so,  state  what  you  done  and  what  was  done. — A.  Yes,  I  did;  and 
kept  them  out.  I  did  not  do  anything,  but  kept  them  out — from  going  in  on  the 
managers. 

Q.  Did  you  prevent  whites  as  well  as  blacks  from  crowding  around  the  managers  ? — 
A.  I  did. 

Q.  Do  you  know  that  a  number  of  Elliott  tickets  were  in  circulation  at  the  precinct 
on  the  day  of  election  ? — A.  Y'es,  sir ;  I  saw  some  come  in  with  the  voters,  and  that 
they  voted  them  as  they  said  they  were  going  to  do. 

Q.  Were  they  white  or  colored  people  ? — A.  They  were  colored,  and  there  was  a 
few  whites  voted  that  day. 

Q.  Did  you  have  any  conversation  with  the  colored  voters  that  day  in  reference  to 
Elliott  and  Miller;  if  so  state  what  was  said  ? — A.  I  saw  some  of  them  with  whom  I 
talked.  I  asked  them  who  they  were  going  to  vote  for,  and  some  of  them  said  they 
were  going  to  vote  for  Elliott  and  some  for  Miller,  I  believe. 

Q    Do  you  believe  this  or  do  you  know  it  ? — A.  I  know  it. 

Cross-examination: 

Q.  In  what  voting  precinct  do  you  reside,  and  where  did  yon  live  on  the  6th  of 
November  last  ? — A.  I  lived  in  the  Walterboro'  precinct,  and  lived  there  on  election 
day. 

Q.  Do  you  know  the  citizens  of  Green  Pond,  generally  ? — A.  No. 

Q.  Name  the  men  who  said  they  were  going  to  vote  for  Elliott. — A..  I  don't  know 
their  names. 


MILLER   VS.    ELLIOTT.  567 

Q.  Are  yon  not  frequently  in  and  around  Green  Poud? — A.  No;  but  I  go  there 
Bometinies,  once  or  twice  a  year. 

Q.  Yoa  said  some  colored  men  aaid  to  you  they  were  going  to  vote  for  Elliott. 
What  office  did  they  say  ? — A.  They  did  not  say  what  office. 

Q.  Was  Elliott  really  a  candidate  that  day,  and  what  office  was  he  running  forf — 
A.  He  was  a  candidate,  and  he  was  running  for  office  of  Congress,  I  think. 

Q.  From  what  district  was  he  running? — A.  Seventh,  I  think. 

Q.  Do  you  know  the  relative  strength — voting  strength,  I  mean — of  the  Democrat 
and  Republican  parties  at  Green  Pond  poll  ? — A.  No,  I  dout. 

Q.  You  said  you  saw  some  of  the  men  with  Elliott  tickets.  How  do  you  know 
they  were  Elliott  tickets? — A.  They  had  them  open  in  their  hands  and  I  saw  them, 

Q.  Do  you  mean  to  say  that  you  read  them  yourself? — A.  I  did  read  them  all  my- 
self; I  saw  Elliott's  name  on  some  of  them. 

Q.  Can  you  read  ? — A.  I  can  read  a  little. 

Q.  How  long  were  you  acting  marshal  at  the  door  or  in  the  building;  were  you 
there  continually  during  the  day? — A.  I  was  there  acting  from  seven  o'clock  until 
six  in  the  evening.  I  went  one  time  to  the  depot  and  right  back.  Another  time  I 
went  in  the  kitchen  to  eat  my  dinner.     Those  are  the  only  times  I  left  my  post. 

Q.  State  what  time  of  day  you  went  to  the  depot,  and  what  time  of  day  you  took 
dinner. — A.  I  suppose  it  was  about  10  o'clock  when  I  went  to  the  depot;  about  two 
o'clock  I  took  dinner, 

Q.  When  you  went  to  the  depot,  did  you  pass  by  many  people  to  get  there  ? — A.  No. 

Q.  How  near  did  you  pass  to  any  persons  in  going  to  the  depot? — A.  I  passed  some 
in  two  or  threee  feet  of  me,  the  others  were  further. 

B.  H.  PADGETT,  a  witness  in  behalf  of  contestee,  being  duly  sworn,  says: 

Question.  State  your  age  and  occupation,  and  where  you  reside. — Answer.  Age,  33 ; 
I  am  a  physician,  a  merchant,  and  treasurer  and  business  manager  of  the  Green  Pond, 
Walterboro'  and  Branchville  Railroad  ;  I  reside  at  Walterboro'. 

Q.  Were  you  at  any  time  on  the  6th  of  November  last  at  Green  Pond? — A.  I  was 
there  at  nine  in  the  morning  and  staid  until  about  eleven ;  and  from  about  five  in  the 
afternoon  until  the  polls  were  closed  and  the  votes  had  been  counted. 

Q.  Did  you  at  any  time  after  the  polls  had  been  closed,  and  before  the  count  of  the 
ballots  had  been  finished,  enter  the  room  in  which  the  poll  was  held  ? — A,  1  did ;  and 
a  few  others. 

Q.  Were  you  permitted  by  the  managers  to  remain  in  that  room  ? — A.  I  was  not; 
the  managers  were  counting  the  votes  when  I  reached  the  door,  and  others  crowded 
in,  and  we  were  ordered  out,  the  managers  stating  that  the  train  was  waiting  for 
them,  and  they  wanted  the  crowd  to  disperse  so  that  they  could  get  through  counting 
the  votes. 

Q.  At  what  time  was  the  train  scheduled  to  have  left  Green  Pond  ? — A.  The  train 
"was  scheduled  to  have  left  Green  Pond  at  5.30  p.  m.,  Charleston  time,  and  the  man- 
agers did  not  finish  canvassing  the  votes  until  about  9  o'clock. 

Q.  Was  there  any  distinction  made  between  white  and  colored  on  the  part  of  the 
managers  in  ordering  the  crowd  to  leave  the  room  ? — A.  If  there  was  I  did  not  notice 
it.     I  noticed  colored  people  in  the  room  when  1  was  in  there. 

Cross-examined : 

Q.  In  what  precinct  do  you  reside,  and  to  what  party  do  you  belong  ? — A.  I  reside 
at  Walterboro  precinct,  and  belong  tn  the  Democratic  party. 

Q.  Were  you  and  others  not  in  the  room  when  W.  F.  Myers  asked  for  admission  and 
wa«  refused  ? — A.  I  was,  but  had  been  ordered  out,  and  was  on  my  way  out  when  I 
heard  them  talking  to  him. 

Q.  You  stated  that  colored  men  were  in  the  room  when  you  were  there.  How  many 
of  them  did  you  see,  and  who  were  they  ? — A.  There  were  two  or  three :  I  did  not 
know  them  but  one — Brown. 

Q.  Do  you  know  the  relative  strength  of  the  Democratic  and  Republican  parties  at 
Green  Pond  poll  ? — A.  I  do  not. 

T.  J.  BLANCHARD,  a  -witness  in  behalf  of  the  contestee,  being  duly  sworn,  says : 

Question.  What  is  your  age  ? — Answer.  Thirty-three  years  of  age. 

Q.  Where  do  you  reside  ? — A.  Walterboro. 

Q.  What  is  your  occupation  ? — A.  I  am  conductor  of  the  Walterboro  Railroad,  run- 
ning between  Walterboro  and  Green  Pond. 

Q.  Where  were  you  on  the  6th  day  of  November  last  ? — A.  I  was  at  Green  Pond. 

Q.  In  what  capacity,  if  any,  did  you  act  at  the  election  held  for  Congressman  on 
that  day  ? — A.  One  of  the  managers. 

Q.  At  what  time  were  the  polls  opened  ? — A.  Seven  o'clock,  some  time. 

Q.  Do  you  know  J.  T.  Brown  ? — A.  I  know  Brown  who  acted  as  supervisor. 


568  MILLEK    VS.    ELLIOTT. 

Q.  Was  he  there  when  the  polls  were  opened  ? — A.  I  did  not  see  him. 

Q.  Was  he  tliere  during  the  day  ? — A.  Yes  ;  I  suppose  it  was  five  minutes  after  vot- 
ing had  commenced,  as  wveral  bad  come  in  and  voted. 

Q.  Was  he  present  when  the  polls  closed,  and  did  he  remain  iu  the  room  when  the 
canvass  of  votes  was  made  ? — A.  Yes. 

Q  Did  the  managers  exclude  colored  people  and  white  people  alike  from  the  room 
while  the  count  was  going  on  ? — A.  Well,  we  did  not  at  first,  but  after  we  had  started 
to  count  found  it  impossible  to  get  along  without  having  them  removed  froui  where 
we  were  counting,  as  the  entry  where  we  were  counting  was  very  small,  and  the  talk- 
ing and  noise  was  so  great  that  you  could  not  hear  anything,  and  we  were  anxious  to 
get  through  and  get  back  on  the  train  ;  the  train  had  been  already  waiting  at  least 
two  hours, 

Q.  Do  you  know  what  became  of  the  poll-list  kept  at  the  poll  that  day? — A.  It  was 
put  in  the  box  after  we  got  through  counting  and  locked  up  and  brought  to  the  com- 
missioner. 

Q.  Did  the  voters  have  free  access,  to  the  building  in  which  the  election  was  held 
during  the  day  for  the  purpose  of  voting? — A.  Yes, 

Q.  At  the  close  of  the  polls  was  the  canvass  made,  the  excess  of  tickets,  if  any,  de- 
stroyed, according  to  law  ? — A-  They  were. 

Q.  Do  you  know  O.  P  Williams,  who  acted  as  one  of  the  managers! — A.  Yea,  sir. 

Q.  Do  you  know  where  he  resided  at  that  time  ? — A.  White  Hall  Station,  about 
four-and-a-half  miles  from  Green  Pond, 

Q  Do  you  know  that  White  Hail  is  in  the  Seventh  Congressional  district  ? — A. 
Yes. 

Q.  Is  it  in  the  Green  Pond  voting  precinct  ?— A.  Yes. 

Q.  Do  you  know  that  tickets  bearing  the  name  of  William  Elliott  for  Congress 
was  circulated  at  the  precinct  on  the  day  of  election  among  the  voters? — A,  Yes. 

Cross-examination : 

Q.  At  what  time  did  you  leach  the  poll,  or  reach  the  place  where  the  voting  was 
conducted,  and  who  accompanied  you  ? — A.  Between  twelve  and  three  in  the  morn- 
ing; there  was  myself,  Mr.  Kice,  O.  P.  Williams;  there  was  four  colored  men  who 
pulled  the  crank  car  from  Walterboro  to  Green  Pond. 

Q.  Did  you  all  stay  at  the  house  in  which  the  voting  was  to  be  conducted  next 
day  ? — A    We  staid  in  the  house  where  it  was  conducted. 

Q.  What  relation  or  connection  the  others  had  to  conduct  of  election  ? — A.  There 
were  at  least  a  dozen  who  staid  in  the  house  who  were  not  connected  with  the  conduct 
of  election ;  Mr.  Eice  and  Mr,  Oliver  Williams ;  I  am  not  sure  all  the  managers  slept 
in  the  same  room. 

Q.  Where  did  the  voters  come  from  who  voted  before  the  supervisor  appeared ; 
were  they  those  in  the  house  or  some  of  them  ? — A.  Thej"^  came  from  the  outside ; 
they  did  not  sleep  in  the  house,  what  I  saw  of  them. 

Q.  Who  were  they  ? — A.  I  don't  remember  their  names  or  who  they  were. 

Q.  Will  you  testify  that  none  who  slept  in  house  the  night  preceding  voted  before 
the  supervisor  appeared  ? — A  After  the  poll  were  opened  and  the  voting  had  com- 
menced I  went  to  wash  my  face. 

Q.  And  yet  you  can  not  tell  who  or  how  many  had  voted  ? — A.  I  was  so  worn  out 
from  the  loss  of  rest  I  did  not  pay  any  attention  to  who  had  voted. 

Q.  All  the  managers  having  slept  in  the  house  in  a  room  of  which  the  voting  was 
conducted  did  they  announce  publicly  to  the  large  number  of  voters  on  the  outside, 
including  J.  F.  Brown,  supervisor,  that  they  were  ready  to  receive  votes? — A.  The 
voting  was  not  conducted  in  the  room  in  which  we  slept,  but  in  the  entry.  Yes,  they 
were  all  notified  ;  don't  know  who  was  among  them,  don't  know  whether  Brown  was 
there  or  not.     I  found  him  there  when  I  came  from  washing. 

Q.  This  house  being  used  as  private  quarters  for  the  managers,  do  you  mean  to  say 
that  Brown,  as  supervisor,  and  other  voters  could  have  gone  in  until  they  were  in- 
vited, or  notified  that  the  voting  was  to  be  conducted  there. — A.  They  were  invited 
as  soon  as  the  polls  were  open.  The  house  was  unoccupied  at  the  time,  but  I  think 
Mr.  Hickman's  clerk  slept  there. 

Q.  Was  it  not  occupied,  the  night  preceding  the  election,  as  a  lodging  place  for 
the  three  managers  f— A.  It  was  the  only  place  we  could  get. 

Q.  Do  you  know  the  relative  strength  of  the  Democratic  and  Republican  parties 
at  Green  Pond  precinct  ? — A.  No. 

Q.  Your  being  a  citizen  of  Walterboro'  precinct  and  another  of  the  managers  liv- 
ing there,  also  the  entire  board  being  Democratic,  was  it  for  the  want  of  material 
down  there  that  they  had  to  deprive  a  majority  of  the  board  the  right  to  vote  at 
home? — A.  No. 

Q.  You  said  you  saw  Eiliott  tickets  in  circulation  that  day;  was  it  not  in  the  entry 
and  on  the  table  or  box  where  the  voting  waa  being  conducted? — A.  All  around  the 
precinct. 


MILLER   VS.    ELLIOTT.  569 

Q.  Yon  saw  them  circulated ;  are  you  prepared  to  swear  that  they  were  voted  ? — 
A.  Some  of  them  were. 

Q.  You  say  the  room  was  so  crowded  that  they,  the  outsiders,  were  ordered  to 
leave.  About  how  many  was  in  there,  and  who  were  they? — A.  They  were  not  or- 
dered to  leave,  but  simply  to  move  back — Mr.  May  and  several  others,  white  and 
black. 

Q.  Who  was  clerk  that  day  ? — A.  Mr.  Rice,  Mr.  Williams,  and  Drawdy,  who  re- 
lieved them. 

Redirect: 

Q.  Do  you  not  know  that  Mr.  Drawdy  was  regarded  as  the  clerk? 

(Objected  to  as  leading.) 

A.  Yes. 

Q.  What  was  the  location  of  the  building  in  which  the  election  was  held? — A.  It 
was  riji;ht  in  the  center  of  the  town,  in  the  most  public  place  in  the  town,  and  the 
only  place  that  could  have  been  gotten  that  I  know  of.  The  building  was  about  five 
steps  from  the  railroad  track. 

Q.  Is  not  that  railroad  track  used  as  a  thoroughfare  or  walkway  for  almost  if  not 
every  colored  man  who  goes  to  Green  Pond? — A.  Yes;  and  white,  too. 

Q.'  What  was  the  situation  of  the  passage-way  in  relation  to  the  railroad  track? — 
A.  The  house  and  passage-way  fronted  the  railroad  track. 

In  reply : 

Q.  State  what  part  of  the  entry- way  the  boxes  were  located.  Was  it  not  in  the  ex- 
treme rear,  leading  to  the  kitchen  ? — A.  About  the  center. 

Q.  About  how  many  feet  from  the  back  door  was  the  table  ? — A.  About  ten  or 
twelve  feet. 

Now  where  is  the  truth?  With  the  five  unimpeached  witnesses  or 
with  the  man  Brown  ?  The  bare  suggestion,  it  seems  to  us,  will  suggest 
the  answer  without  allusion  to  the  law  of  evidence  touching  the  pre- 
I)Ouderance  of  the  testimony.  The  evidence  discloses  that  there  were 
from  1  to  5  ballots  with  Miller's  name  on  them,  folded  togetiier  and 
stufl'ed  in  the  box.  Who  did  it?  There  is  no  doubt  that  Miller's  ad- 
herents were  the  ballot-box  stufl'ers  there. 

JACKSONBORO   PRECINCT. 

At  this  poll  it  is  charged  that  there  were  183  ballots,  and  about  70 
were  in  excess  of  the  poll  list.  On  the  evidence  of  one  witness,  the 
United  States  supervisor,  L.  D.  Smalls,  who  testified  that  he  signed  the 
returns  and  reported  the  same  as  the  managers,  and  who  says  ho  ob- 
jected to  signing  at  the  start  because  he  could  not  see  the  names  on  the 
tickets  when  thoy  were  counted,  and  for  that  reason  only,  but  finally 
signed  them  all,  declares  the  validity  of  the  return  to  have  been  de- 
stroyed, and  with  great  reluctance  conceding  to  Elliott  46  votes  (because 
Miller  in  his  brief  gives  them  to  him),  places  .ill  the  balance  to  the  credit 
of  Miller. 

Somewhat  taken  aback,  however,  it  seems,  by  their  own  liberality  in 
allowing  to  Elliott  what  Miller  himself  admits  ''Me  majority  deem  it 
necessary  to  apologize  for  the  same,  which  it  naively  does  in  the  fol- 
lowing language : 

In  his  original  brief  filed  with  the  committee,  contestant  conceded  to  contestee  46 
votes,  the  remainder  of  the  113  not  proven  to  have  voted  for  contestant ;  and  for  that 
reason,  and  because  it  is  noiv  only  a  question  of  the  amount  of  contestant's  majority,  we 
state  the  vote  as  in  this  brief,  etc. 

The  italics  are  ours.  It  is  a  noticeable  fact  in  the  record  that  very 
few,  only  14,  of  the  witnesses  for  contestant,  who  say  they  voted  for  him, 
can  read  or  write,  and  most  of  them  in  the  density  of  their  ignorance, 
such  as  we  have  heretofore  illustrated  herein,  evidently  knew  as  little 
about  what  they  were  doing  as  the  common  run  of  ten-year-old  children. 

W.  F.  Myers,  contestant's  chief  witness,  swears  (p.  95)  that  the  Demo- 
cratic voting  strength  at  Jacksouboro'  is  "  about  70."    Contestee  got  68. 


570  MILLER    VS.    ELLIOTT. 

PORT  EOYAL,  BEAUFORT   OOUNTY. 

The  reiurn  shows — 

Elliott 199 

Miller 14 

Total 213 

All  the  proof  as  to  this  poll  is  summed  up  as  follows  by  the  majority 
(p.  22) : 

Fifty-one  witnesses  (pp.  128-160)  testify  that  they  voted  for  Miller,  and  their  names 
are  all  on  the  poll-list  as  having  voted.  This  evidence  stands  iincoutradicted.  Duly 
qualified  voters  were  refused  permission  to  vote,  and  names  of  Democrats  are  on  the 
poll-list  as  having  voted  who  had  moved  away  and  were  not  present  at  the  election, 
thus  further  discrediting  the  returns. 

And  the  majority  adds  37  to  contestant's  vote  and  deducts  that  num- 
ber from  contestee.  Taking  first  the  statement  that "  duly  qualified 
voters  were  refused  permission  to  vote,"  what  is  the  testimony?  Two 
men  only  were  rejected — John  Hicks  and  Benjamin  Wroten.  John 
Hicks  says  (p.  156) : 

Q.  Did  you  ofter  to  vote  at  the  last  election;  and,  if  yes,  were  you  ohjected  to,  and  at 

what  precinct  1 
(Ohjected  to  on  the  ground  that  the  poll-list  is  the  best  evidence.) 
A.  Yes,  sir ;  hut  I  was  ohjected  to  because  they  said  my  register  certificate  was  not 

dated  right  at  Port  Koyal  precinct. 

On  cross-examination  he  says : 

Q.  Where  is  your  registration  certificate? — A.  At  home. 

Q.  Who  said  it  was  dated  wrong  ? — A.  Mr.  Rodgers  was  there  at  the  box,  also  Mr. 
iStickuey  and  Mr.  Bull.  I  don't  remember  who  said  it  was  wrong.  I  think  it  was 
Mr.  Stickney. 

Q.  How  was  it  dated  ? — A.  I  can't  tell ;  I  don't  remember. 

Q.  Was  it  somebody  else's  certificate  ? — A.  No,  sir ;  I  went  there  and  got  it  myself 
and  put  it  away  until  the  day  of  election  ;  nobody  had  anything  to  do  with  it. 

He  had  the  certificate  at  home  and  yet  could  not  produce  it.  What 
proof  is  there  that  he  was  registered  at  all  ?  Is  it  possible  to  consider 
this  as  "  discrediting  "  the  returns  ?  Tbe  other  rejected  voter  is  Benja- 
min Wroten,  who  says  he  was  rejected  because  the  name  on  his  certifi- 
cate did  not  correspond  with  the  registration  book  used  by  the  mana- 
gers. 

On  cross  examination  he  says  (p.  — ): 

Q.  Where  is  your  registration  certificate  ? — A.  I  have  it  at  home. 

Q.  How  do  you  spell  your  name  ? 

(Objected  to  on  the  ground  that  voters  are  not  required  by  law  to  spell  their  names 
neither  at  th'j  time  of  registering,  nor  at  the  poll,  to  enable  them  to  register  or  vote. 
The  supervisor  of  registration  is  supposed  to  spell  each  person's  name  correctly  on 
the  registration  certificate,  and  to  so  copy  it  on  the  registration  list.) 

A.  Benjamin  Wroten,  bnt  I  find  most  people  here  spell  it  Roten. 

Again  the  certificate  was  not  produced,  and  for  no  earthly  good  reason. 
By  referring  to  the  two  notices  of  deposition  at  page  162  it  will  be  found 
that  in  one  his  nanae  is  spelt  ''Rhoten  "  and  in  the  other  "Roden,"  while 
he  was  sworn  as  "  Eoten."  It  is  upon  the  foregoing  testimony  that  the 
majority  finds  that  "  duly  qualified  voters  were  refused  permission  to 
vote." 

Kow  as  to  the  next  statement,  that  Democrats  who  had  moved  away 
were  on  the  i)oll-list  as  voters.  John  McClellan,  p.  142,  swears  there 
were  two,  J.  W.  Barnes  and  T.  E.  Barnes.  On  cross-examination  he 
says : 

Q.  Do  you  mean  to  swear  that  neither  J.  W.  or  T.  E.  Barnes  were  in  Port  Royal  on 
election  day,  or  do  you  mean  to  swear  that  you  did  not  see  them  ? — A.  T.  E.  Barnea 


MILLER    VS.    ELLIOTT.  571 

was  uot  in  this  town  on  that  day,  and  if  J.  W.  Barnes  was  here  I  did  not  see  him,  nor 
for  weeks  before. 

Q.  Will  yon  swear  that  I  was  not  here  on  election  day  ? — A.  No,  but  I  can  swear  I 
did  uot  see  you. 

Q.  Did  you  vote  in  the  Presidential  box  ? — A.  No,  sir ;  I  did  not. 

John  (his  x  mark)  McClellaht. 

Why  was  McClellan,  who  can  uot  sigu  his  name,  relied  on  to  prove 
this  instead  of  the  Republican  supervisor,  who  could  certainly  have 
l^roved  that  these  men  did  not  vote  ?  We  submit  that  there  is  nothing 
in  this  testimony  to  overthrow  the  presumption  of  the  correctness  of 
the  return,  so  as  to  admit  proof  as  to  how  each  voter  voted,  as  the 
majority  decides.  Of  the  witnesses  who  swear  they  voted  for  Miller, 
twenty-four  made  their  mark.  They  got  their  tickets  chieOy  from 
John  McC/lellan,  who  himself  had  to  make  his  mark.  Fourteen  of  them 
were  examined  without  notice — Kit  Chisolm,  Cicero  Lawton,  P.  Brown, 
A.  Black,  W.  Stelling,  H.  Jourdau,  S.  Anderson,  W.  Flowers,  D.  John- 
sou,  J.  Toomer,  A.  Green,  Rich  Hey  ward  No.  1,  J.  Jones,  and  A.  Moye, 
p.  162.  They  were  all  objected  to  on  this  ground;  and  each  is  styled 
in  the  depositions  "  voluntary." 

St.  Stephen's,  Berkeley  County. — The  objection  to  this  precinct 
is  that  eighty-one  persons  say  they  voted  for  Miller.  There  was  no 
proof  to  overthrow  the  presumption  of  the  correctness  of  the  managers' 
return.  Of  the  eighty-one,  lifty-six  made  their  marks  to  their  deposi- 
tions. Every  one  swears  that  he  got  his  ticket  from  one  Tobe  Price, 
and  the  great  majority  that  they  relied  entirely  on  his  representation 
as  to  its  kind.  We  call  especial  attention  to  the  following  testimony 
(page  75) :  .  , 

JINGO  DINGLE,  sworn : 

Q.  State  your  name,  age,  residence,  and  occupation. — A.  Jingo  Dingle;  age,  37; 
♦residence,  Old  Field  Plantation;  occupation,  laborer. 

Q.  Where  were  you  on  the  6th  of  November,  1888,  the  day  of  the  last  general 
election  ?— A.  At  St.  Stephen's. 

Q.  Did  you  vote  there  that  day  f — A.  Yes,  sir. 

Q.  For  whom  did  you  vote  as  candidate  for  Congress  ? — A.  Mr.  Miller. 

Q.  Who  gave  you  your  ticket  ? — A.  Mr.  Price. 

Cross-ex. : 
Q.  Can  you  read  and  write  ? — A.  No  sir. 

Q.  Then  you  know  you  voted  for  Miller  because  Price  told  you  so  ? — A.  Yes,  sir;  he 
read  the  ticket  to  me  and  told  me  so. 
(Same  objection  as  to  last  witness.) 

Redirect : 
Q.  Did  you  vote  the  ticket  Price  gave  you  ? — A.  Yes,  sir ;  the  same  he  gave  me. 
Q.  What  is  that  ? 

(Counsel  hands  witness  a  ticket,  T.  E.  Miller,  Representative  for  51  Congress.) 
A.  That  was  not  the  kind  of  a  ticket  h^  read  to  me. 
Q.  What  kind  of  a  ticket  did  he  read  to  you  ? 
(Objected  to.) 
A.  He  read  Mr.  Miller's  name  to  me  for  Congress. 

Jingo  (his  x  mark)  Dinglk. 

when  contestant's  counsel  showed  witness  the  ticket ''  T.E.  Mdler,  Rep- 
resentative for  Fifty-first  Congress,"  he  answered  "  that  was  not  the  kind 
of  ticket  he  read  to  ?ne." 

Kow  it  is  very  strange,  in  this  connection,  that  Price,  who  gave  out 
all  these  tickets,  was  never  sworn  to  tell  what  tickets  he  did  distribute. 
ITo  explanation  is  given  of  this  failure.  As  to  most  of  the  witnesses, 
therefore,  there  is  absolutely  no  proof  what  ticket  they  voted.  We  give 
the  following  testimony. 


5.72  MILLEK    VS.    ELLIOTT. 

JACOB  CAMPBELL,  sworn  (p.  52) : 

Q.  State  your  name,  age,  residence,  and  occnpation. — A.  Jacob  Campbell ;  age,  50 
years  ;  resideuce,  Jervey's  Chapel ;  occupation,  laborer. 

Q.  Where  were  yon  on  the  6th  November,  1888,  the  day  of  the  last  general  elec- 
tion f — A.  At  St.  Stephen's  voting  precinct. 

Q.  Did  you  vote  there  that  day  T — A.  I  did. 

(Objected  to,  as  the  poli-list  is  the  best  evidence.) 

Q.  For  whom  did  you  vote  as  candidate  for  Congress? — A.  I  voted  for  Smalls. 

Q.  Who  gave  yon  your  ticket? — A.  Tobe  Price. 

Q.  How  many  tickets  he  gave  you  ? — A.  One. 
,Q.  Can  you  read  and  write? — A.  No,  sir. 

Q.  Who  was  the  Democratic  candidate  for  Congress  ? — A.  That  man  that  ran  against 
Smalls;  can't  think  of  his  name. 

Q.  Do  you  know  if  Thomas  E.  Miller  was  a  candidate  for  Congress? 

(Objected  to  as  leading  question.) 

A.  Yes,  sir. 

Q.  Was  Thomas  E.  Miller  the  Kepnblican  or  Democratic  candidate \hat  day? — A. 
I  could  not  exactly  tell ;  lie  seem  to  be  pressing  very  hard  for  Small. 

jACOB^hisx  mark)  Campbell. 

SHIRER  MIDDLETON,  sworn  (p.  80) : 

Q.  State  your  name,  age,  residence,  and  occupation. — A.  Sbirer  Middleton ;  age,  57; 
residence,  Gillinsville  ;  occupation,  farmer. 

Q.  Where  were  you  on  the  6th  November,  1888,  the  day  of  the  last  general  election  I — 
A.  St.  Stephen's. 

Q.  Did  you  vote  there  that  day  ? — A.  Yes,  sir. 

Q.  For  whom  did  you  vote  as  candidate  for  Congress? — A.  Thomas  E,  Miller. 

Q.  Who  gave  you  your  ticket? — A.  Tobe  Price. 

Q.  Can  yon  read  ? — A.  I  can  read  enough  to  find,  the  name  of  Thomas  E.  Miller. 

Cross-ex. 

Q.  You  said  you  can  read,  read  this  [hands  witness  printed  paper  and  asks  him  to 
read  a  line  thereon]. — A.  I  can  not  read  it,  sir. 

Q.  Can  you  read  that  line  [shows  witness  first  line  of  the  heading  of  the  answer  of 
Wm.  Elliott,  which  read:  "Thomas  E.  Miller  vs.  Wm.  Elliott"]  ?— A.  I  can't  read  it. 

JERRY  MAURICE,  sworn  (p.  54): 

Q.  State  your  name,  age,  residence,  and  occupation. — A.  Jerry  Maurice  ;  age,  45 ; 
residence,  Speir's  Still;  occupation,  farmer. 

Q.  Where  were  you  on  the  6th  November,  1888,  the  day  of  the  last  general  elec- 
tion ? — A.  At  St.  Stephen's  voting  precinct. 

Q.  Did  you  vote  there  that  day? — A.  Yes,  sir;  at  the  county  and  State  poll,  but 
not  at  the  Congressional  poll. 

Q.  For  whom  did  you  vote  as  candidate  for  Congress? — A.  Thomas  ililler,  but  I 
did  not  vote  for  Congressman. 

BEN  WILSON,  sworn  (p.  77) : 

Q.  State  your  name,  age,  residence,  a»d  occnpation. — A.  Ben  Wilson;  age,  32; 
residence,  Buck  Hall ;  occupation,  farmer. 

Q.  W^here  were  you  on  the  6th  November,  1888,  the  day  of  the  last  general  elec- 
tion ? — A.  At  St.  Stephen's  voting  precinct. 

Q.  Did  you  vote  there  that  day? — A.  No,  sir;  they  would  not  let  me  vote. 

Q.  For  whom  did  you  vote  as  a  candidate  for  Congress? — A.  Did  not  vote. 

Q.  Who  gave  you  your  ticket  ? — A.  B.  T.  Price. 

Q.  Did  you  go  to  the  polls  to  vote  ? — A.  Yes,  sir. 

Q.  Who  were  you  going  to  vote  for? — A.  I  was  going  to  vote  for  Miller. 

Q.  Did  you  have  your  registration  certificate  with  you? — A.  Yes,  sir. 

Cross-examined: 
Q.  Why  was  it  they  would  not  let  you  vote  ? — ^A.  They  said  my  certificate  was  not 
right. 
Q.  What  was  wrong  about  it? — A.  They  never  said  what  was  wrong  about  it. 
Q.  Where  were  you  living  on  the  day  of  election  ?— A.  At  Buck  Hall. 
Q.  Did  the  managers  ask  you  any  questions? — A.  No,  sir;  just  asked  me  where  I  was 
living. 

Ben  (his  x  mark)  Wilson. 


I 


MILLER   VS.    ELLIOTT.  573 

All  these  witnesses  are  included  in  the  81  allowed  contestant,  althangh 
geveral  say  they  did  not  vote  for  him.  The  majority  refrain  from  depriv- 
ing contestee  of  his  entire  vote  only  because  contestant's  counsel  did  not 
demand  it,  they  say.  ^ 

EVANS'  MILLS,  OBANGEBURGH  COUNTY. 

At  this  poll  the  majority,  while  admitting  that  "  there  is  a  conflict" 
as  to  the  facts,  say  the  box  was  stuffed.  A  careful  examination  ot  the 
testimony  will  show  that  this  is  not  so.  The  only  witness  (T.  T.  Green, 
p.  316),  speaking  of  ballots  being  torn  up,  says : 

For  the  right  number,  I  can  not  exactly  tell.  I  suppose  about  125,  or  more,  taken 
from  the  three  different  piles. 

The  Republican  precinct  chairman  came  in  just  after,  but  Green  did 
not  report  a  word  of  the  destruction  to  hi  m.  Hazard  Barden,  Demo- 
cratic supervisor,  says  {p.  386) : 

When  we  went  to  count  the  Congressional  box  we  proceeded  in  like  manner.  After 
tearing  up  all  the  Presidential  tickets  found  therein  there  was  an  excess  in  the  box 
of  tickets.  I  don't  remember  how  many,  but  a  few  ;  and  on  the  tally  which  three 
kept — myself.  Dr.  Lawton,  an  I  T.  T.  Green — there  was  a  difference  in  the  tally  of 
all  three  of  some  few  votes.  We  decided  to  take  the  tally  of  T.  T.  Green,  the  Re- 
publican supervisor,  and  the  ballots  were  all  put  back  in  the  box  and  stirred  tip 
thoroughly.  Dr.  A.  C.  Baxter,  jr.,  was  blindfolded  and  requested  to  draw  out  the 
excess  and  tear  up  in  the  presence  of  all  without  knowing  what  he  tore  up  ;  then  we 
proceeded  to  count.  After  the  count  we  found  that  there  had  been  seven  tickets  too 
many  drawn  out  and  torn  up,  and  to  make  it  fair  we  put  in  seven  Democratic  and 
seven  Republican  tickets,  and  we  blindfolded  a  colored  man  by  the  name  of  Wm. 
Hilliard  to  draw  out  the  seven  tickets,  and  Hilliard,  to  the  best  of  my  knowledge, 
drew  out  five  for  Elliott  and  two  for  Miller. 

Q.  From  whence  did  you  obtain  the  seven  Miller  tickets,  and  to  whom  did  you 
first  apply  for  them  t — A.  I  applied  to  Wm.  Hilliard  for  them  ;  he  was  a  ticket  dis- 
tributer for  the  Republican  party.  He  gave  me  seven  tickets  and  I  went  to  hand 
them  to  the  managers,  and  I  looked  at  the  tickets  and  found  them  to  be  Elliott 
tickefs ;  I  then  applied  for  more  Miller  tickets,  and  they  were  handed  to  me  by  some 
one,  Baldrick,  I  think,  and  they  were  placed  in  the  box. 

Dr.  Lawton  says  (p.  387) : 

Q.  Can  you  state  how  many  ballots  were  found  in  excess  T — A.  About  seventeen, 
according  to  Green's  tally ;  that  number  was  drawn  out  the  box,  and  then  votes 
•were  couuted  and  found  to  be  seven  less  than  poll-list. 

Q.  Can  you  state  tiie  number  of  votes  Miller  received  as  member  for  Congress  T — 
A.  I  don't  remember;  neither  Mr.  Elliott's. 

Q.  Did  Mr.  Miller  receive  no  more  votes  at  that  poll  than  those  you  gave  him  in 
your  official  return  as  manager  of  election  at  that  precinct  ? — A.  All  Miller  tickets 
fonndin  Congressional  box  were  counted  for  Miller. 

Q.  Were  any  found  tu  any  other  box?— A.  There  were  ;  some  were  found  in  the 
Presidential  box. 

Q.  Can  you  state  how  many  ? — A.  I  can  not. 

Q.  Did  Mr.  Miller  receive  the  benefit  of  those  tickets  found  in  Presidential  boxf — 
A.  He  did  not;  neither  did  Elliott  receive  the  benefit  of  his  tickets  found  in  same 
box. 

Q.  Are  you  a  Republican  or  Democrat  T — A.  A  Democrat. 

Q.  Were  the  other  managers  Democrats  or  Republicans  f — ^A.  They  were  Demo- 
crats. 

W.  H.  Lawton,  M.  D. 

So  stood  the  matter  when  contestee  closed  his  case,  his  testimony 
being  strictly  in  reply  to  contestant's.  In  rebuttal,  however,  contestant 
called  a  large  number  of  witnesses  to  prove  how  they  had  voted  (pp. 
414-476),  whereupon  contestee's  counsel  tiled  the  following : 

Mr.  Dautzler,  attorney  for  Wm.  Elliott,  makes  the  following  objections : 
Ist.  That  the  notice  to  take  testimony  is  illegal,  having  been  served  before  the 
time  of  Mr.  Elliott  in  rei)ly  had  expired. 


574  MILLER    VS.    ELLIOTT. 

2d.  That  objection  is  made  to  taking  testimony  before  Jobn  H.  Ostendorff  as  notary 
pnblic,  his  name  being  on  the  record  in  the  case  as  one  of  the  attorneys  of  the  con- 
testant. 

3.  That  the  evidence  taken  is  not  in  rebuttal. 

The  objection  to  Mr  Ostendorf  being  notary  wbile  being  contestant's 
attorney  on  record  was  certainly  valid.  He  was  not  only  attorney  and 
notary  but  also  a  witness  (p.  69),  not  an  uncommon  occurrence  in  this 
case.  The  testimony  was  certainly  not  in  rebuttal,  and  should  be 
ruled  out.  (See  Posey  vs.  Parrott,  page  1  of  Eeport.)  Of  the  142  who 
testified,  109  made  their  mark.  The  great  majority  of  them  say  they  got 
their  tickets  from  Bill  Green,  the  remainder  from  Tom  Allen,  Edward 
Hartwell,  Wesley  Shuler,  Eufus  Felder,  Lee  Williams,  and  William 
Billiard.  Strange  to  say  neither  Bill  Green,  Tom  Allen,  Wesley 
Shuler,  nor  Lee  Williams  is  sworn,  neither  as  to  the  tickets  they  dis- 
tributed and  not  even  that  they  themselves  voted.  Edward  Hartwell 
and  Eufus  Felder  say  they  voted,  but  say  nothing  about  the  tickets 
they  distributed.     Here  is  Hartwell's  cross-examination  (p.  444): 

Q.  Will  you  read  this  paper  ?  [Hands  witness  copy  of  newspaper.  J — A.  I  decline 
to  read  the  newspaper. 

He  had  sworn  he  could  read.  The  other  distributer  was  Bill  Hilliard, 
who,  as  testified  to  by  Mr.  Hazard  Bardiu,  had  Elliott  tickets  and  not 
Miller's.     We  note  the  following  testimony  (p.  420) : 

STEPHEN  WASHINGTON,  who  being  sworn,  says: 

Q.  State  your  age,  occupation,  residence,  and  where  you  were  on  the  6tli  day  of 
November,  1888. — A.  Age,  26;  farmer;  Floods;  Evans  Mill. 

Q.  State  for  whom  you  voted  as  member  of  Congress  from  the  7th  district  on  the 
6th  of  November,  1888. — A.  Green. 

Q.  Who  did  you  vote  for  f— A.  Mr.  Elliott. 

Q.  State  from  whom  did  you  get  your  ballot,  if  you  can  read,  and  how  many  bal- 
lots or  tickets  did  you  vote  for  Congressman  at  the  last  election. — A.  Mr.  Green ; 
can't  read ;  one. 

Q.  State  at  what  precinct  did  you  vote,  and  if  any  one  read  your  ticket  for  you. — 
A.  Vance's. 

Q.  State  the  name  of  the  person  who  read  your  ticket  to  you,  and  to  what  political 
party  he  belongs. — A.  Green ;  Republican  party. 

Stephen  (his  x  mark)  Washington. 

He  got  his  ticket  from  Green  and  voted  for  Elliott.  Numbers  of  the 
voters  swear  thoy  received  and  voted  only  one  ticket.  We  note  three 
of  these  in  succession  on  page  418 — Wellfare,  Gettress,  and  Oliver. 

Perry  Dun  (p.  415)  says : 

Cross-ex'd  by  Mr.  Dautzler 

Q.  How  many  tickets  did  he  give  yon  T — A.  One. 

Q.  Where  did  you  vote  it  ? — A.  In  the  Presidential  box. 

Time  and  again  witnesses  who  swore  they  could  read  refused  the 
test  on  cross-examination.    Here  are  samples : 

Cross-ex.  (p.  438) : 

Q.  Did  you  read  your  ticket? — A.  Yes,  sir. 

Q.  Tell  me  exactly  what  was  on  that  ticket  T — A.  7th  Congressional  and  Miller. 
Q.  Is  that  all  ? — A.  That  is  all  I  can  remember  just  now. 
Q.  What  Miller  was  that?— A.  T.  B.  Miller. 

Q.  You  say  you  can  read;  read  this  [hands  witness  copy  of  newspaper]. — A.  I  re- 
fnse  to  read  for  you. 
(Same  objections.) 

Ellison  (his  x  mark)  Huggik's. 

Cro88-ex.  (p.  439) : 
Q.  For  what  Miller  did  you  vote  f— A.  T.  A.  Miller. 


MILLER    VS.    ELLIOTT.  575 

Q.  Can  you  read  [oflfers  paper  to  read]  ? — A.  Yes,  I  can  read,  bnti  decline  to  read. 
(Sauie  objections.) 

Brantly  (his  X  mark)  Mookkr. 

Cross-ex. : 
Q.  For  what  Miller  was  it  that  yon  voted? — A.  Thomas  Miller. 
Q.  You  stated  yon  can  read  a  liitle,  read  this  for  me?  [Hands  witness  copy  of  news- 
paper.]— A.  I  am  a  little  hungry ;  don't  feel  like  reading  now. 
(Same  objections.) 

Dudley  (his  x  mark)  Evans. 

EASTOVER,   RICHLAND  COUNTY. 

The  return  from  this  precinct  not  having  been  sent  up  in  time  the 
votes  were  not  canvassed  and  not  included  in  the  result.  The  majority 
say: 

M.  .Tohnson,  the  Republican  supervisor,  testifies  (p.  319)  that  the  Miller  licketa 
were  printed  on  coarser  and  darker  jyaper  than  the  Elliott  tickets,  and  that  when  folded  by 
the  ticket  distributors,  Milhr^s  name  could  be  seen  ;  that  the  name  was  printed  in  larger 
letters  than  Elliott's  name ,  that  he  watched  the  voting  and  kept  a  tally  of  the  voters, 
and  that  Miller's  vote  was  not  less  than  248  nor  more  than  257  (some  tickets  not  cer- 
tain), and  that  Elliott's  vote  was  from  83  to  92. 

It  was  upon  this  kind  of  proof  as  to  the  vote  cast  that  the  supervisor 
made  his  return,  and  it  is  substantially  the  only  proof  as  to  the  vote 
cast  introduced  by  contestant  in  chief,  no  voter  being  called  to  prove 
his  vote.  Contestee  then  had  the  manager's  return  and  poll  list  proved 
and  had  the  ballots  in  the  box  produced  and  counted,  which  verified 
the  return,  thus : 

Elliott 262 

Miller 87 

Simmons 36 

Total 385 

On  November  21,  1888,  contestant  had  filed  the  following  with  the 
State  board  of  canvassers : 

Exhibit  C— J.  T.  B. 

In  the  matter  of  the  election  of  a  Representative  to  the  51st  United  States  Congress 
in  the  Seventh  Congressional  district  of  the  State  of  South  Carolina. 

To  the  honorable  the  Board  of  State  Canvassers . 

The  undersigned,  a  candidate  for  Representative  to  the  51st  Congress  in  the  Sev- 
enth district  for  the  State  of  South  Carolina,  begs  leave  to  suggest  and  give  informa- 
tion to  your  honorable  board  that  in  respect  to  the  statement  and  return  of  the  county 
hoard  of  canvassers  for  Federal  elections  for  Richland  County,  the  said  board  has  not 
included  in  their  statement  the  poll  cast  at  the  precinct  of  Eastover,  in  said  connty 
and  in  the  Seventh  Congressional  district,  upon  the  ground,  as  the  undersigned  is 
informed,  that  the  return  from  said  precinct  had  been  defectively  made;  that  the 
undersigned  was  not  aware  of  such  fact  while  said  board  was  in  session,  and  has  just 
come  into  possession  of  such  information  long  after  said  board  had  finally  adjourned  ; 
that  it  appears  by  a  statement  made  by  the  managers  on  the  poll-list  of  said  box,  but 
not  signed  by  the  managers,  that  the  undersigned,  William  Elliott,  received  262  votes, 

Thomas  E.  Miller  87  votes,  and  Simmons  36  votes,  giving  the  undersigned  a 

majority  over  Thomas  E.  Miller  of  175  votes  ;  that  the  undersigned  is  informed  and 
believes  that  votes  cast  and  in  the  box  at  said  precinct  exactly  correspond  witli  the 
statement  of  the  vote  made  upon  the  poll-list  and  now  in  your  possession.  All  of 
which  facts  and  things  may  be  verified  by  an  inspection  of  the  papers  sent  down  to 
your  body  and  the  votes  in  said  box. 

The  undersigned  therefore  respectfully  begs  that  this  suggestion  may  be  filed  by 
your  boai'd  in  the  records  of  the  election  in  the  Seventh  Congressional  district. 

William  Elliott, 
Per  B.  L.  Abney, 

AW y  for  Wm.  Elliott. 

Nov.  21,  1888. 


576  MILLER    VS.    ELLIO'lT. 

After  all  of  coiitestee's  testimony  was  in,  contestant,  in  violation  of 
the  law,  as  at  Evans  Mill,  look  in  rebuttal  and  against  objection  the 
testimony  of  197  witnesses  to  swear  to  their  vote,  the  same  not  being  in 
rebuttal.  He  also  gave  contestee's  attorney  notice  of  deitosition 
before  three  notaries  at  the  same  i)lace,  at  the  same  hour,  to  which 
objection  was  made,  as  well  as  to  the  questions  being  printed  instead 
of  written,  which  was  common  on  the  part  of  contestant.  The  testi- 
mony is  of  the  same  general  character  as  that  heretofore  noted.  We 
call  attention  to  the  following  ruling  of  N.  F.  Myers,  notary  (p.  52G) : 

Q.  When  yon  voted  that  day  did  you  show  yonr  registration  ticket  ?— A.  Yes,  sir. 

Q.  Have  you  that  ticket,  now  t — A.  Yes,  sir. 

Q.  Let  me  see  it. 

(Notar^'  public  refuses  to  let  the  witness  produce  registration  ticket,  as  counsel 
for  contestee  is  not  a  judge  as  to  competency  of  voters. 

Counsel  for  contestee  objects  to  ruling  on  the  following  grounds:  That  the  witness 
has  stated  that  he  voted  at  the  Congressional  election  and  it  is  desired  to  show 
■whether"  or  not  he  was  legally  qualified  to  vote  ;  2d,  that  the  notary  has  no  right  to 
ruletm  questions  of  law,  as  he  has  already  ruled  himself  that  his  duties  were  purely 
ministerial  and  not  judicial  in  their  character.) 

Myers,  as  will  be  remembered,  was  an  important  witness  for  contest- 
ant as  well  as  notary  in  Colleton  County.  To  show  how  he  was  in- 
fluenced as  notary  by  his  interest  for  contestant  we  refer  to  his  ruling 
in  Colleton  County,  already  mentioned,  where  he  declined  to  exclude 
from  the  room  witnesses  for  examination  on  the  ground  that  his  was 
"merely  a  clerical  position  with  not  a  shadotv  of  judicial  powers.'" 

In  this  connection  we  call  attention  to  the  fact  that  in  addition  to  the 
above  and  that  John  U.  Ostendorf  was  contestant's  attorney,  notary, 
and  witness,  there  were  these  other  witnesses:  J.  F.  Brown  was  no- 
tary, page  92 ;  witness,  page  294.  Jno.  C.  Eue  was  notary,  i)age  97 ; 
witness,  page  452.  T.  J.  Reynolds  was  notary,  page  543;  attorney, 
page  128.  H.  D.  Edwarcls  was  attorney,  page  459  j  witness  three  times, 
pages  302,  310,  324. 


BEN  potter's  precinct. 


The  majority  say : 


Ben  Potter  precinct. — In  this  precinct  there  is  a  diflference  between  the  return  of  the 
United  States  supervisors  and  that  of  the  precinct  managers;  the  supervisors  return- 
ing 41  as  voting,  and  the  managers  141.  The  evidence  here  is  conflicting,  and  we  do 
not  find  it  necessary  to  decide  which  is  the  true  return. 

In  order  to  show  the  facts  as  to  this  precinct  we  quote  irom  contestee's 
brief,  p.  131,  the  following  which  is  sustained  by  the  testimony: 

The  managers'  return  gives  Elliott  141  votes,  Miller  none.  Contestant  attacks  this 
return,  alleges  that  103  votes  were  illegally  and  fraudulently  given  contestee,  and 
contends  that  the  true  return  should  have  been — 

Elliott 38 

Miller 3 

Total 41 

To  sustain  this  he  relies  on  the  testimony  of  J.  H.  Johnson,  supervisor  (p.  46),  who 
swears  that  but  41  votes  were  cast;  that  Elliott  got  38  and  Miller  3,  and  that  he  and 
the  Democratic  supervisor,  W.  H.  Parsons,  signed  such  a  return  and  forwarded  it  to 
the  chief  supervisor.  Instead  of  making  out  a  case  of  fraud  against  the  Democratic 
oflBcials  the  testimony  discloses  a  disgraceful  series  of  crimes  on  the  part  of  contestee's 
adherents. 

In  the  first  place,  Parsons  was  not  the  Democratic  supervisor,  but  W.  P.  Gardner 
■was.  (See  certificate  of  clerk  of  U.  S.  Circuit  Court,  p.  667.)  The  copy  of  .lohnson's 
return  put  in  evidence  was  not  certified  to  by  the  chief  supervisor,  but  by  contest- 
ant's notary  (p.  661).  When  the  original  return  was  examined  by  contestee's  attor- 
ney, it  was  found  that  there  had  been  a  clumsy  attempt  at  changing  the  figures — 


MILLER    VS.    ELLIOTT.  577 

changing  the  total  vote  from  141  to  41,  and  changing  Elliott's  vote  from  141  to  38, 
and  giving  Miller  3  votes.  Thereupon,  contestee  had  the  paper  examined  by  E.  H. 
Sparknian,  cashier,  and  gave  notice  of  his  examination  at  the  office  of  the  clerk  of 
U.  S.  Circuit  Court,  when  the  original  was  tiled,  on  2d  April.  The  return  was  seen 
and  examined  on  Ist  April  by  both  Sparkuian  and  Hon.  H.  K.  Jenkins,  contestee's 
attorney;  hwi  it  had  disappeared  during  the  night— SkW  the  custodians  being  Republi- 
cans—and  on  the  2d  could  not  be  produced,  having  been  sent  out  of  the  State  for  no 
reason  whatever,  Sparkman  was  examined  as  to  the  above  changes  and  testified  to 
them.  Contestant  was  present  and  objected  to  Sparlcman's  testifying  as  to  the  forgeries 
without  the  paper  being  produced.  He  subsequently  admitted  to  Mr.  Jenkins  that  he 
had  "  got  information  yesterday  that  you  were  going  to  examine  an  expei't  as  to  eras- 
ures and  forgeries." 

We  give  the  following  testimony : 
E.  H.  SPARKMAN,  sworn  (p.  395) : 

1.  Q.  State  your  name,  age,  occupation,  and  residence. — A.  E.  H,  Sparkman ;  43 
years;  cashier  in  bank;  Charleston. 

2.  Q.  Does  your  occupation  require  that  you  should  pay  particular  attention  to 
written  instruments,  with  a  view  to  detecting  forgeries,  alterations,  erasures,  etc  ?— A. 
It  does. 

3.  Q.  Did  you  examine  the  return  of  a  supervisor  of  elections  which  was  on  file  in 
this  oHice,  or  in  this  room  or  building  for  Ben  Potter's  precinct  on  yesterday  ? 

(T.  E.  Miller  objects  to  the  above  question  on  the  ground  that  there  is  no  proof  of 
there  being  any  return  on  file  in  any  room  or  any  building  anywhere  in  the  world  in 
these  records.) 

A.  I  examined  a  paper  which  was  submitted  to  me,  and  which,  I  think,  I  could 
identify  if  produced  again, 

4.  Q.  Where  did  you  examine  this  paper? — A.  In  this  room,  clerk's  oflSceof  the 
United  States  circuit  court. 

5.  Q.  Do  you  remembei  anything  peculiar  about  the  appearance  of  that  paper ;  if 
so,  state  what? 

(T.  E.  Miller  objects  on  the  ground  that  the  paper  is  the  best  evidence  of  its  pecu- 
liarity, and  witness  is  not  competent  to  testify  about  its  condition  until  the  said 
paper  has  been  produced  or  it  is  proven  that  the  said  paper  is  not  in  existence.) 

A.  The  paper  bore  evidence  ot  alteration  in  some  of  the  figures  and  erasures  in 

Ofh  TS. 

ti.  Q.  Can  you  state  what  those  alterations  and  erasures  were  ?  If  you  can  please 
do  so. 

(T.  E.  Miller  objects  because  the  paper  or  supervisor's  report  is  the  best  evidence 
of  its  condition.) 

A.  I  would  say  that  in  my  opinion  the  original  returns  called  for  141  votes,  and  was 
so  altered  as  to  read  41.  Lower  down  on  the  same  paper  the  same  figures,  141,  were 
changed  to  read  38 ;  next  lower,  comes  the  figure  3,  representing  the  vote  for  some- 
body, who,  I  don't  remember.  On  the  next  two  succeeding  lines  below,  on  each,  there 
is  the  figure  3  with  a  line  drawn  horizontally  through  each. 

Cross-examined  by  T.  E,  Miller  : 

The  cross-examination  consists  chiefly  of  elaborately  prepared  ques- 
tions as  to  forgeries,  of  which  we  give  the  following: 

12.  Q.  Are  you  an  expert  in  handwriting  ?— A,  I  have  been  examined  as  such. 

13.  Q.  Can  you  distinguish  between  the  writing  that  is  intended  to  mislead,  or  to 
make  one  believe  that  it  is  done  by  one  and  the  same  person  ? — A.  I  have  found  dif- 
ferences in  handwriting  by  comparison  which  detected  the  forgery. 

14.  Q.  I  have  here  a  paper  with  the  name  of  Thomas  E.  Miller  written  forty-nine 
times,  the  key  to  which  is  in  an  envelope.  Please  tell  me,  if  you  can,  whether  all  of 
the  forty-nine  names  were  written  by  one  and  the  same  person,  and  I  state  that  No.  2  on 
this  paper  is  a  [H.  K,  Jenkins  objects  to  this  question  until  he  can  see  what  the  key 
is  or  how  it  is  intended  to  be  used]  genuine  signature,  and  you  will  so  find  it  stated 
in  the  key,— A.  In  the  forty-nine  signatures  submitted  there  is  an  evident  attempt  to 
mislead,  which  makes  it  quite  possible  that  they  were  all  written  by  the  same  per- 
son. 

We  give  a  part  of  the  testimony  of  H,  K.  Jenkins,  contestee's  counsel, 
who  was  compelled  to  testify  later  as  to  the  abstraction  of  the  record. 

HAWKINS  K,  JENKINS  sworn  (p,  400)  : 

My  name  is  Hawkins  King  Jenkins;  my  age,  29  years;  occupation,  attorney  and 
ccunsellor  at  law,  and  I  reside  in  Mt.  Pleasant,  S.  C.  I  am  one  of  the  counsel  for 
Col,  Elliott  in  this  contest.    As  such  counsel,  ou  the  30th  day  of  March  last,  I  served 

H.  Mis.  137 37 


578  MILLEE    VS.    ELLIOTT. 

Genl.  S.  J.  Lee,  who  accepted  service  as  attorney  for  the  contestaut,  with  notice  that 
I  would  examine  Mr.  E.  H.  Sparkman  on  the  Tuesday  succeeding,  at  the  custom-house 
in  Cliarleston,  at  2  o'clock  p,  m.,  on  behalf  of  Col.  Elliott.  During  a  short  conversa- 
sion  which  I  had  with  Genl.  Lee  at  that  time,  he  said  that  he  would  like  to  know 
what  I  was  going  to  examine  Mr.  Spaikman  about,  and  asked  who  Mr.  Sparkman 
was.  I  replied,  "  I  will  tell  yon  at  the  examination.  I  am  going  to  examine  him  as 
to  Ben  Potter's.  On  Monday,  the  Ist  of  April,  Mr.  Sparkman  was  taken  into  the 
office  of  clerk  of  the  circuit  court  of  the  United  States  for  the  purpose  of  having 
him  examine  the  return  of  the  United  States  supervisor  for  Ben  Potter's  preciBct. 
This  return,  along  with  the  others,  had  been  kept  in  that  office,  where  I  had  exam- 
ined it  carefully  on  two  occasions.  I  had  noticed  tbat  the  figures  on  this  return  had 
been  changed  and  erasures  had  been  made,  so  as  to  show  a  total  vote  of  41  instead  of 
141,  and  a  vote  of  38  for  Col.  Elliott  instead  of  14L  I  therefore  determined  to  call  an 
expert,  and  summoned  Mr.  Sparkman,  who  I  knew  had  been  used  as  such  on  former 
occasions  in  the  State  court.  On  Tuesday,  at  the  hour  appointed,  I  went  to  tlie  cus- 
tom-house with  Mr.  Sparkman  and  S.  Porcher  Smith,  notary  public.  Alter  a  few 
moments  Mr.  Miller  and  W.  H.  Berney,  esq.,  his  notary,  came  in.  I  asked  Col.  Hagood, 
the  clerk  of  the  circuit  court,  from  whom  I  had  gotten  them  on  former  occasions,  to 
let  me  have  or  see  the  supervisor's  return  for  Ben  Potter's.  He  said  ikey  were  not 
there.  I  asked  him  where  they  were.  He  said,  "  I  have  sent  them  to  Washington." 
I  replied,  "Why,  they  were  here  yesterday,  for  Mr.  Sparkman  examined  the  returns 
for  Ben  Potter's  at  that  time."  Mr.  Hagood  replied,  "  I  know  that,  but  I  sent  all  of 
the  supervisors'  returns  to  Washington  by  this  morning's  mail."  I  think  he  said  that 
he  had  sent  them  to  Col.  Poiuier.  We  then  examined  Mr.  Sparkman.  At  the  close 
of  his  testimony  I  remarked  to  the  contestant,  "You  seem  to  have  expected  evidence 
as  to  forgeries."  He  replied,  "Yes,  I  did."  I  asked  him,  "  What  made  you  expect 
it?"  He  replied,  "  Well, the  examination  is  over  now,  and  we  are  talking  as  men, 
and  I  don't  mind  telling  you  that  I  got  information  yesterday  evening  that  you  were 
going  to  examine  " — I  don't  remember  whether  he  said  Mr.  Sparkman  or  an  expert — 
I  think  he  said  an  expert  "  as  to  erasures  and  forgeries."  Mr.  Hagood  is  a  Republican, 
and  so  is  Col.  Poinier,  the  chief  supervisor.  In  the  conversations  given  above  I  think 
I  have  given  the  exaci  words.  I  have  certainly  given  the  exact  meaning  or  import 
thereof. 

(All  of  the  above  testimony  is  objected  to  by  counsel  for  contestant  as  irrelevant, 
hearsay,  and  inadmissible,  who  gives  notice  that  at  the  proper  time  and  place  he  will 
move  to  strike  the  same  out  of  the  record.) 

Cross  examined  by  S.  J.  Lee. 

2.  Q.  Do  you  know  at  whose  request  those  records  were  sent  to  Washington? — A. 
I  know  that  Col.  Hagood  was  informed  by  Col.  Elliott  (or  at  least  I  do  not  know  of 
my  own  knowledge),  upon  the  authority  of  a  letter  from  Col.  Poinier  addressed  to 
Col.  Elliott,  which  I  have  in  my  possession,  that  it  was  not  necessary  to  forward  the 
original  returns  to  Washington  or  to  him,  but  that  Col,  Elliott  might  have  copies 
made  of  any  which  he  needed,  and  that  if  Col.  Hagood  would  write  out  the  certificate 
and  forward  the  copies  with  the  certificates  so  written,  he  would  cheerfully  sign  the 
same. 

3.  Q.  You  have  not  answered  my  question.  With  Col.  Poinier's  letter  in  your  pos- 
session did  you  call  on  Col.  Hagood  and  ask  him  to  make  the  copies  referred  to,  and 
forward  them  to  Col.  Poinier  ? — A.  I  did  not  intend  to  evade  answering  your  question, 
and  will  now  state  that  I  do  not  believe  that  Col.  Hagood  was  requested  by  any  Dem- 
ocrat or  by  Col.  Poinier  to  forward  the  records  or  any  part  of  them  to  Washington; 
he  was  certainly  not  requested  to  do  so  either  by  Col.  Elliott  or  myself,  as  we  both 
knew  that  we  would  need  this  particular  return  on  Tuesday  for  the  purpose  of  sub- 
mitting it  to  an  expert.  In  reply  to  your  last  question  I  would  say  that  I  did  not;  I 
believe  that  Col.  Elliott  asked  that  copies  should  be  made  and  forwarded  with  certifi- 
cates as  directed  in  Col.  Poinier's  letter  to  him,  but  "Ben  Potter's"  was  not  among 
the  number  ask.  d  for,  I  s.aj"^  this  because  I  was  present  when  Col.  Elliott  made  a 
list,  in  Col.  Hagood's  office,  of  differerent  records  of  which  he  desired  copies.  He  took 
the  "  Ben  Potter's  "  return  out  of  the  package  ;  we  examined  it  together  ;  I  reminded 
him  that  contestant  had  put  in  a  certified  copy  of  it,  and  he  replaced  it  in  the  pack- 
age, and  said,  "we  would  not  need  a  copy."  At  that  time  I  did  not  have  Col. 
Poinier's  letter  in  my  possession. 

4.  Q  Who  were  present  when  you  and  Col.  Elliott  examined  that  return? — A.  Col. 
Hagood's  clerk  was  in  the  room,  and  a  part  of  the  time,  I  think,  a  gentleman  named 
Seignious.  Col.  Elliott  and  myself  examined  the  papers  at  Col.  Poinier's  desk  in  one 
corner  of  the  room  ;  several  people  passed  through  the  room  while  we  were  there, 

5.  Q.  Who  was  present  with  you  when  yon  first  examined  that  return? — A.  Col. 
Elliott  was  with  me. 

On  13th  of  April,  after  coutestee's  time  to  take  testimony  liad  ex- 
pired, the  return  is  produced  by  contestant's  witness  B.  A.  Hagood, 


MILLER    VS.    ELLIOTT.  579 

deputy  clerk  United  States  circuit  court  (p.  455).  Not  a  word  of  ex- 
planation is  given  of  its  disappearance^  nor  of  its  restoration.  Mr. 
Hagood,  on  cross-examination,  testifies  that  there  had  been  an  erasure 
of  one  figure  before  the  figures  41 — the  whole  vote  for  member  of  Con- 
gress and  that  under  the  figures  38 — the  vote  given  Elliott — he  could 
see  41,  and  that  there  was  an  erasure  before  38,  showing  undoubtedly 
that  the  vote  originally  given  Elliott  was  141.  Although  contestee 
was  thus  prevented  from  showing  by  an  expert  this  forgery,  yet  it  is 
as  clearly  proved  as  if  a  hundred  experts  had  testified  to  it. 

So  stood  the  matter  at  the  close  of  the  taking  of  testimony  and  after 
contestee's  brief  had  been  filed.  When  contestant  put  in  his  brief  in 
reply  the  following  aijpeared  therein,  dated  six  mouths  after  the  testi- 
mony had  been  closed : 

United  States  of  America, 

District  of  South  Carolina : 
Personally  appeared  B.  A.  Hagood,  deputy  clerk  of  the  United  States  circuit  court 
foi-  the  district  of  South  Carolina,  who  deposes  and  says :  That  the  returns  of  the  Fed- 
eral supervisors  of  election  for  the  precinct  of  Ben  Potter's,  in  the  county  of  Berkeley, 
in  the  Seventh  Congressional  district  of  the  State  of  South  Carolina,  were  in  the  cus- 
tody of  the  clerk  of  this  court,  and  were  never  out  of  the  office  of  the  clerk  except 
when  on  the  2d  of  April,  1889,  they  were,  with  other  returns,  sent  by  the  clerk  to  the 
chief  supervisor  of  elections,  who  at  that  time  was  in  the  city  of  Washington,  D.  C, 
in  order  that  the  said  chief  Supervisor  might,  under  his  hand  and  seal,  certify  to  the 
correctuessof  certain  copies  thereof  forwarded  with  said  originalsat  thesame  time,  said 
copies  being  made  for  and  at  the  request  of  William  Elliott,  contestee.  That  they 
were  sent  in  pursuance  to  a  letter  received  from  the  chief  supervisor  of  elections, 
which  said  letter  contained  the  following : 

"Washington,  D.  C,  March  28,  1889. 
"Be  kind  enough  to  let  Mr.  Elliott  have  free  access  to  all  the  records  of  the  super- 
visor's office.     If  he  finds  any  that  will  be  of  service  to  him  in  his   contest  let  him 
have  copies  made  of  them.    If  you  or  your  father  ivill  write  the  certificates,  that  they  are 
true  copies  and  will  forward  them  to  me,  I  will  sign  the^n." 

Copies  of  returns  having  been  made  they  were,  in  accordance  with  directions  from 
chief  supervisor,  forwarded  to  him  at  Washington,  D.  C,  and  but  for  the  aforesaid 
request  the  returns  would  have  been  in  the  office  of  the  clerk. 

Sworn  and  subscribed  to  before  me  this  15th  day  of  November,  1889. 
[SEAL.]  B.  A.  Hagood, 

Dep'ty  CPk  V.  8.  Ct.  Court  Dist.  S.  C. 
Julius  Seabrook, 

Dep.  C.  D.  C.  U.  8.  S.  C. 

The  italics  are  ours. 

As  already  stated,  Mr.  Hagood  had  been  examined  in  the  case,  and 
had  said  not  a  word  about  the  disappearance  of  the  return,  which  he 
then  produced,  but  six  months  afterwards  he  made  this  affidavit.  But 
it  does  not  at  all  help  the  matter,  because  the  letter  of  the  chief  super- 
visor says  distinctly  that  the  copies,  with  the  certificates  written  out, 
were  only  to  be  sent.  In  fact,  it  proves  beyond  a  doubt,  and  by  written 
testimony,  that  the  originals  were  not  to  be  sent  from  the  office.  More- 
over, Mr.  Jenkins  testified  that  contestee  did  not  want  a  copy  of  the 
return  from  this  precinct  and  had  not  asked  for  it,  because  contestant 
had  already  put  it  in  evidence.  We  have  not  time  to  comment  further 
upon  the  foregoing  testimony,  the  true  character  of  which  every  one 
must  understand. 


PRIVATEER,  SUMTER  COUNTY. 


The  majority  say 


The  same  is  true  of  Privateer  precinct,  Sumter  County,  where  Elliott  is  returned 
by  the  managers  as  receiving  130  votes,  and  by  the  supervisors  as  receiving  88. 


680  MILLER   VS.    ELLIOTT. 

That  is,  "tbe  evidence  is  conflicting  and  we  do  not  find  it  necessary 
to  decide  which  is  tbe  true  return."  In  the  first  place  tbis  charge  was 
never  made  in  the  notice  of  contest.  In  the  second  place,  there  is  no 
evidence  whatever,  except  the  return  of  the  Republican  supervisor,  not 
supervisors,  as  the  majority  say,  and  that  of  the  managers.  Contestant 
did  call  a  witness  who  was  "  distributing  tickets  and  keeping  a  memo-  • 
randum  of  the  voting"  at  this  very  place,  R.  C.  Andrews  (p.  31),  and 
yet  be  was  never  asked  a  word  about  this  charge.  The  managers'  re- 
turn and  poll-list  will  be  found  at  pages  G52,  653.  Contestant  in  bis 
brief  (p.  o3)  asserts  that  the  return  was  that  of  the  "  Democratic  super- 
visor." The  record  shows  (p.  G68)  that  he  was  not  the  Democratic  but 
the  Republican  supervisor.  Why  was  not  this  alleged  fraud  made  a 
ground  of  contest,  or  why  was  not  this  supervisor  called  to  prove  it ' 

cooper's  store. 

We  dissent  entirely  from  the  conclusion  of  the  majority  as  to  this 
precinct,  but  as  their  action  only  makes  a  difference  of  two  votes  we 
will  not  discuss  it. 

We  have  considered  all  the  cases  in  which  the  majority  has  made 
any  change  in  the  vote  as  returned  and  have  given  our  views  thereon, 
together  with  the  testimony.  We  do  not  agree  with  the  majority  in 
their  conclusion,  but  conceding,  for  the  purpose  of  the  argument,  that 
they  are  correct  in  all  respects  excepting  as  to  the  1,000  votes  alleged 
to  be  found  in  the  wrong  box  and  given  contestant,  still  the  contestee 
would  have  a  majority  of  243. 

We  would  therefore  offer  the  following  substitute  for  the  resolutions 
of  the  majority : 

Resolved,  That  Thomas  E.  Miller  was  not  elected  a  Representative 
from  the  Seventh  district  of  South  Carolina  to  the  Fifty-first  Congress. 
'  i2e«ofi7ei,  That  William  Elliott  was  duly  elected,  and  is  entitled  to 
retain  his  seat. 

R.  P.  C.  Wilson. 

C.  F.  Crisp. 

Charles  T.  O'Ferrall. 

Levi  Maish. 

L.  W.  Moore. 

J.  H.  Odthwaite. 


EKED  S.  GOODRICH  vs.  EOBEET  BULLOCK. 


SECOND  FLORIDA. 


The  gromids  of  contest  set  out  in  the  notice  are,  in  general,  refusal 
to  receive  legal  votes  tendered,  false  counting,  false  returns,  destruc- 
tion of  ballot  boxes,  and  the  commission  of  various  other  frauds  by  the 
election  officers. 

The  committee  find  that  by  the  illegal  action  of  registering  officers  in 
refusing  qualified  voters  permission  to  register,  or  arbitrarily  striking 
their  names  from  the  list,  and  of  election  officers  in  refusing  to  receive 
legal  votes  tendered,  as  well  as  by  some  instances  of  the  other  frauds 
charged,  the  contestant  was  deprived  of  a  sufficient  nnmber  of  votes 
legally  cast  or  tendered  for  him  to  have  given  him  a  majority  had  they 
been  counted. 

The  minority  find  some  votes  illegally  rejected,  but  that  most  of  the 
votes  in  question  were  properly  rejected,  the  voters  having  failed  fully 
to  comply  with  the  registration  and  election  laws  of  Florida.  The  evi- 
dence relied  on  to  sustain  the  other  charges  is  insufficient,  and  the 
number  of  voters  illegally  rejected  being  much  less  than  the  majority 
returned,  contestee  is  still  entitled  to  the  seat. 

This  case  was  never  reached  by  the  House. 

(1)  Registration.     When  new  certificate  necessary  under  Florida  law. 

A  new  certificate  of  registration  is  not  a  couditioa-precedent  to  vot- 
ing, under  the  Florida  law,  when  a  voter  has  moved  from  one  house  to 
another  within  a  voting  district.  "  While  the  law  provides  for  issuing  a 
new  registration  certificate  to  a  voter  who  has  changed  his  residence} 
either  within  the  precinct  or  to  another  one,  it  does  not  require  such  a 
new  certificate  as  a  condition-precedent  to  voting  when  the  change  of 
residence  is  within  the  precinct  or  voting  district.  On  the  contrary,  it 
expressly  provides  that  a  new  certificate  shall  be  necessary  if  the 
change  of  residence  is  from  one  voting  district  to  another,  thus  imply- 
ing that  it  shall  not  be  necessary  if  the  change  is  not  from  one  voting 
district  to  another.    Inclusio  unius,  exclusio  alteriusJ^ 

(2)  No  registration.    In  a  county,  vote  counted. 

Where  the  governor  failed  to  appoint  a  supervisor  of  registration  for 
a  county,  and  there  was  consequently  no  registration  as  provided  by 
law,  but  the  election  was  held  under  the  old  registration,  and  no  harm 

581 


582  GOODRICH    VS.  BULLOCK. 

appears  to  have  been  done,  held,  that  the  vote  of  the  county  should  be 
counted.  "  The  committee  are  clearly  of  opinion  that  voters  complying 
with  all  other  requirements  of  the  law  can  not  be  disfranchised  by  the 
neglect  of  public  officials  to  furnish  them  opportunity  to  register." 

(3)  Ballots.     Distinguishing  mark. 

Where  the  statute  provides  that  "  The  voting  shall  be  by  ballot, 
which  ballot  shall  be  plain  white  pai)er,  clear  and  even  cut,  without 
ornaments,  designation,  mutilation,  symbol,  or  mark  of  any  kind  what- 
ever, except  the  name  or  names  of  the  person  or  persons  voted  for  and 
the  office  to  which  such  person  or  persons  are  intended  to  be  chosen, 
which  name  or  names  and  office  or  officers  shall  be  written  or  printed, 
or  partly  written  and  partly  printed,  thereon  in  black  ink  or  with  black 
pencil,  and  such  ballot  shall  be  so  folded  as  to  conceal  the  name  or 
names  thereon,  and  so  folded  shall  be  deposited  in  a  box  to  be  con- 
structed, kept,  and  disposed  of  as  hereinafter  provided,  and  no  ballot 
of  any  other  description  found  in  any  election  box  shall  be  counted," 
held,  that  an  asterisk,  so  small  as  to  escape  attention,  printed  on  the 
lower  corner  of  the  ticket,  did  not  constitute  a  distinguishing  mark 
within  the  meaning  of  the  statute. 

(4)  Ballots.     Distinguishing  marJc. 

Where  certain  tickets  were  "scratched"  in  red  or  purple  ink, instead 
of  the  black  ink  required  by  law,  the  colored  ink  being  the  only  ink  to 
be  had  in  the  only  store  in  the  place,  held,  that  the  votes  should  be 
counted.  "The  committee  do  not  think  that  under  the  circumstances 
these  voters  should  be  disfranchised,  notwithstanding  the  terms  of  the 
statute,  as  the  marking  was  not  done  for  any  improper  or  unlawful 
purpose  and  the  use  of  this  ink  was,  in  a  manner,  compulsory.  (See 
McCrary  on  Elections,  sections  400,  401,  404.)" 

(5)  Ballots.     Distinguishing  marJc. 

Ballots  rejected  because  of  scarcely  visible  specks,  and  those  rejected 
because  of  a  printer's  dash  in  a  place  where  no  person  was  named  for 
a  particular  office,  were  improperly  rejected. 

(6)  Ballots.     Distinguishing  mark. 

Ballots  rejected  because  the  name  of  a  candidate  for  justice  of  the 
peace  was  written  in  with  a  red  pencil  should  be  counted. 

(7)  Ballots.     Distinguishing  mark. 

Ballots  rejected  because  of  a  printer's  dash  separating  each  name  on 
the  ticket  should  be  counted. 

(8)  Ballots.     Distinguishing  mark. 

Ballots  rejected  because  of  pencil  marks  on  them  madeby  the  judges 
of  election  in  pushing  them  into  the  box  with  a  pencil  should  be  counted. 

(9)  Ballot  boxes.    Stolen. 

Where  the  ballot  boxes  were  stolen  and  no  returns  were  made  the 
committee  count  the  votes  upon  satisfactory  proof  of  how  they  were  cast. 


REPOKT. 


August  4, 1890. — Mr.  Eowell,  from  the  Committee  on  Electious,  sub- 
mitted the  foUowiug  report: 

The  Committee  on  Elections,  having  had  under  consideration  the  con- 
tested-election case  of  Fred  S.  Goodrich  vs.  Eobert  Bullock,  from  the 
second  Congressional  district  of  Florida,  submit  the  following  report: 

The  second  district  of  Florida  is  composed  of  the  following  counties: 
Madison,  Hamilton,  Suwannee,  Columbia,  Baker,  Nassau,  Duval,  Clay, 
Bradford,  A-lachua,  Putnam,  Marion,  Sumpter,  Lake,  Orange,  Osceola, 
Dade,  Brevard,  Volusia,  and  St.  John's. 

The  contest  in  this  case  is  confined  to  the  following  eleven  counties: 
Dade,  Columbia,  Putnam,  Volusia,  Orange,  Marion,  Nassau,  Alachua, 
Hamilton,  Duval,  and  Madison. 

The  grounds  of  contest,  set  out  in  the  notice,  are,  in  general:  refusal 
to  receive  logal  votes  tendered,  false  counting,  false  returns,  destruction 
of  ballot-boxes,  and  the  commission  of  various  other  frauds  by  the 
election  officers. 

Under  the  constitution  of  Florida  residence  in  the  State  one  year,  in 
the  county  six  months,  registration,  and  the  age  of  twenty-one  years  are 
the  qualifications  for  native-boru  electors.  Foreigners  are  placed  on 
the  same  footing  as  natives  after  having  declared  their  intention  to  be- 
come citizens.  There  is  the  usual  disqualification  for  conviction  of 
crime. 

The  result  of  the  election  in  the  second  district,  as  declared  by  the 
State  canvassing  board,  was: 

Kobert  Bullock 20,012 

Fred.  S.  Goodrich 16,el3 

Majority  for  Bullock 3,195 

The  first  general  question  necessary  to  be  examined,  in  order  to  arrive 
at  a  correct  understanding  of  this  case,  is  that  of  registration. 

At  its  session  in  1887  the  legislature  of  Florida  enacted  a  new  regis- 
tration and  election  law,  copied  largely  from  the  South  Carolina  elec- 
tion law,  but  in  many  respects  more  just  and  equal  in  its  provisions, 
and,  when  executed  according  to  its  letter  and  spirit,  calculated  to  se- 
cure reasonably  fair  elections.  Some  of  its  provisions  would,  in  a  projier 
case,  be  held  to  be  inoperative,  as  going  beyond  the  constitutional  limit, 
but  these  [)rovisions  are  not  involved  in  this  case  to  any  material  ex- 
tent, and  will  not  be  discussed  here.  The  complaint  in  this  case  is  not 
against  the  laws,  but  against  the  manner  of  executing  them. 

The  registration  is,  in  a  manner,  permanent ;  one  registered  for  any 
particular  county  and  precinct  is  permanently  registered  for  that  precinct 
until,  by  removal  or  conviction  of  crime,  he  forfeits  his  right  to  remain 

583 


584 


GOODRICH    VS.    BULLOCK. 


on  the  registry.  The  uew  law  of  1887  preserves  the  registration  then 
existing. 

A  registered  voter  may  apply  for  and  receive  a  certificate  of  registra- 
tion, but  it  is  not  necessary  for  hira  to  have  such  certificate  to  entitle 
him  to  vote.  It  is  evidence  of  his  right,  but  it  need  not  be  presented 
at  the  i)olls  except  when,  for  any  reason,  his  name  does  not  appear  upon 
the  registry  book  in  the  hands  of  the  precinct  managers  of  election. 

Each  county  has  a  supervisor  of  registration,  having  an  office  at  the 
county  seat  which  he  is  required  to  keep  open  at  least  three  days  in 
each  week,  from  9  to  12  a.  m.  and  from  1  to  5  p.  m.,  from  the  first  Mon- 
day in  August  to  the  last  Saturday  preceding  the  first  Monday  in  Oc- 
tober in  each  year  in  which  there  is  a  general  election.  The  supervisor 
is  required  to  appoint  a  district  registering  officer  for  each  election  dis- 
trict, whose  duty  it  is  to  register  the  votes  of  his  district  and  who  is 
required  to  keep  his  books  open  at  some  convenient  place  iu  his  district, 
at  least  two  days  in  each  week,  between  the  same  hours  as  provided  for 
the  supervisor,  during  the  month  of  September  in  each  year  of  general 
election.  Voters  may  register  either  with  the  district  registering  officer 
or  with  the  supervisor.  On  removing  from  one  residence  to  another 
voters  are  entitled,  on  application,  to  receive  a  transfer  of  registration 
and  a  certificate  of  transfer.  This  right  is  not  confined  to  the  days  of 
registration  or  to  the  mouths  in  which  origioal  registration  may  be  had. 

Tiie  county  commissioners  are  required  at  their  October  meeting  to 
review  the  work  of  the  supervisor  of  registration  and  to  hold  special 
meetings  for  that  purpose.  They  are  required  to  publish  the  names  of 
all  persons  stricken  from  the  rolls,  and  the  supervisor  is  required  to 
restore  to  the  rolls  all  names  ordered  by  the  commissioners  to  be  so  re- 
stored. 

Much  of  the  evidence  in  this  case  is  directed  to  the  misconduct  of 
8ui)ervisors  of  registration  and  of  district  registering  officers.  Otber  por- 
tions of  the  evidence  are  directed  to  the  misinterpretation  of  ihe  law  by 
managers  of  election.  The  misconduct  of  registering  officers  consisted 
in  unlawfully  striking  from  the  books  large  mimbers  of  duly  registered 
voters,  in  refusing  or  neglecting  to  restore  the  names  ordered  to  be  re- 
stored by  county  commissioners,  in  keeping  their  offices  closed  on  days 
of  registration,  in  unreasonably  delaying  applicants,  in  unlawfully  re- 
quiring colored  applicants  to  prove  their  places  of  residence  by  white 
witnesses  known  to  the  registering  officers,  in  unlawfully  refusing  or 
neglecting  to  make  transfers  on  due  application,  in  furnishing  unequal 
facilities  for  registration,  as  between  their  party  friends  and  their  party 
opponents,  and  in  fraudulently  registering  persons  not  qualified. 

Complaint  is  made,  in  some  instances,  against  county  commissioners 
for  failing  to  meet  to  revise  the  work  of  the  supervisors,  and  to  order 
restored  those  names  that  had  been  unlawfully  stricken  from  the  books. 

Managers  of  election  unlawfully  refused  to  receive  the  ballots  of  col- 
ored Republican  voters  who  were  duly  registered,  and  whose  names 
were  on  the  registry  books  in  the  hands  of  the  managers,  because  they 
did  not  present  their  registration  certificates.  They  also  refused  to  ac- 
cept such  certificates  as  proof  of  the  right  to  vote  of  voters  whose  names 
had  been  unlawfully  stricken  from  the  rolls. 

They  also  refused  to  accept  the  tendered  votes  of  Republicans  who 
were  marked  as  having  moved  witliin  the  precinct  in  which  they  were 
registered.  In  many  instances  this  removal  had  not,  in  fact,  taken 
place,  and  when  it  had  it  did  not  disqualify  the  voter,  under  the  law,  from 
voting.  While  the  law  provides  for  issuing  a  new  registration  certifi- 
cate to  a  voter  who  has  changed  his  residence,  either  within  the  precinct 


GOODRICH    vs.    BULLOCK.  585 

or  to  anotlier  oue,  it  doe^  not  require  such  a  new  certificate  as  a  con- 
dition precedent  to  rotinj:?  when  the  change  of  residence  is  within  the 
precinct  or  voting  district.  On  the  contrary,  it  expressly  provides  that 
a  new  certificate  shall  be  necessary  if  the  change  of  residence  is  from 
one  voting  district  to  another,  thus  implying  that  it  shall  not  bo  neces- 
sary if  the  change  is  not  from  one  voting  district  to  another.  Tnclusio 
unius,  excluaio  alferius. 

The  evidence  in  the  case  is  voluminous,  covering  all  the  irregularities 
which  are  noted,  and  which  will  be  referred  to  more  in  detail  as  we  con- 
sider the  vote  in  the  various  counties  and  precincts. 

DADE  COUNTY. 

The  vote  in  Dade  County  was:  Bullock,  95;  Goodrich,  45.  It  is 
claimed  by  contestant  that  this  whole  vote  should  be  rejected,  because 
no  registration  was  had  in  the  county  under  the  statute.  It  appears 
that  no  supervisor  of  registration  was  appointed  in  this  county  until 
after  the  election.  This  was  not  the  fault  of  the  voters,  and  we  do  not 
think  they  should  be  disfranchised  because  of  the  failure  of  the  gov- 
ernor to  commission  a  supervisor  of  registration,  as  required  by  law.  The 
old  registration  was  in  existence,  and  the  election  was  held  under  it  in 
full  compliance  with  the  law,  with  the  exception  noted.  The  committee 
are  clearly  of  opinion  that  voters  complying  with  all  other  requirements 
of  the  law  can  not  be  disfranchised  by  the  neglect  of  public  officials  to 
furnish  them  ©importunity  to  register. 

COLUMBIA  COUNTY. 

District  No.  7. — Ten  duly  registered  and  legally  qualified  voters  ten- 
dered ballots  for  contestant  and  were  rejected.     (Record,  pp.  184,  189.) 

District  JSo.  4. — Twenty  legally  qualified  and  duly  registered  voters 
tendered  their  ballots  for  contestant  and  the  ballots  wererejected.  Tluy 
were  then  handed  to  the  United  States  supervisor,  were  preserved,  a lid 
are  in  evidence.     (Record,  pp.  184,  185.) 

District  No.  5. — Thirty- three  qualified  voters  tendered  ballots  for  con- 
testant, which  were  rejected  by  the  inspectors,  but  were  received  and 
preserved  by  the  United  States  supervisor.     (Record,  pp.  186, 188.) 

District  No.  10. — Forty  ballots  tendered  for  contestant  by  qualified 
voters  were  rejected.  They  were  then  delivered  to  the  Democratic 
county  judge,  ana  by  hiu.  prf  served.  All  these  voters  were  duly  reg- 
istered and  their  names  were  on  the  registry  list  in  the  hands  of  the  in- 
spectors.    (Record,  pp.  86,  87.) 

District  No.  8. — Thirteen  ballots  tendered  for  contestant  by  qualified 
voters  were  rejected  by  the  inspectors,  and  then  received  and  preserved 
by  the  United  States  supervisor.    (Record,  pp.  181,  182.) 

District  No.  2. — Three  ballots  tendered  for  contestant  by  duly  quali- 
fied voters  were  rejected.     (Record,  p.  183.) 

District  No.  6. — Five  ballots  tendered  for  contestant  by  duly  qualified 
voters  were  rejected.    (Record,  pp.  183, 184.) 

District  No.  3. — Three  ballots  tendered  for  contestant  by  duly  quali- 
fied voters  were  rejected.    (Record,  p.  189.) 

These  127  voters  were  all  residents  of  the  several  precincts  at  which 
they  oftered  to  vote,  had  been  duly  registered,  tendered  their  votes,  and 
were  refused  the  right  to  vote  under  various  pretexts,  none  of  wliich 
were  valid.  No  attempt  has  been  made  to  rebut  the  evidence  proving 
the  above  facts.  One  hundred  and  twenty-seven  votes  should  be  added 
to  the  vote  of  contestant  in  Columbia  County. 


586  GOODRICH  VS.  BULLOCK. 

PUTNAM  COUNTY. 

District  No.  1. — Fifteen  witnesses  swear  to  tendering  their  votes  for 
contestant  and  that  their  ballots  were  refused.  They  had  also  duly  ap- 
plied for  registration  and  had  been  refused.  They  were  qualified  for 
registration  and  were  illegally  rejected.  Fifteen  votes  should  be  added 
to  the  vote^of  contestant  in  Putnam  County.     (Rec,  pp.  75-79.) 

VOLUSIA  COUNTY. 

In  Volusia  County  thirty-one  qualified  voters  tendered  their  ballots 
for  contestant  and  were  rejected.  Some  of  these  voters  were  duly  rsgis- 
tered  and  then,  in  violation  of  the  law  and  without  notice,  their  names 
were  stricken  from  the  registry.  Others  had  applied  for  registration 
and  had  been  informed  by  the  supervisor  of  registration  that  their 
names  were  already  on  the  list.  Others,  under  various  pretexts,  were 
illegally  refused  registration.  The  evidence  in  regard  to  these  votes  is 
conclusive  and  uncontradicted,  and  contestant's  vote  in  Volusia  County 
should  be  increased  by  31.     (Rec,  pp.  17-03,  199-207,  219-221.) 

ORANGE  COUNTY. 

In  District  No.  3,  Orange  County,  31  ballots  cast  for  contestant  were 
not  counted,  on  the  ground  that  there  was  a  distinguishing  mark  upon 
them.  On  the  lower  right-hand  corner  of  these  ballots  was  a  printed 
star  (*),  so  small  as  not  to  attract  attention.  Careful  voters,  on  exam- 
ining their  tickets,  would  scarcely  notice  it.  The  ballots  were  printed  in 
a  Democratic  newspaper  office,  and  the  star  was  undoubtedly  placed 
there  for  the  purpose  of  deception  and  to  secure  the  rejection  of  these 
ballots  by  the  ijrecinct  inspectors.  This  was  not  such  a  distinguishing 
mark  as,  under  the  circumstances,  authorized  the  inspectors  to  refuse 
to  count  these  ballots.     (Rec,  pp.  251-254.) 

In  this  county,  also,  nine  duly  qualified  voters  tendered  their  ballots 
for  contestant  and  were  rejected.  (Rec,  pp.  25G-2GG.)  The  commit- 
tee add  40  votes  to  contestant's  vote  in  Orange  County. 

MARION  COUNTY. 

In  Fauntville  i)recinct,  Marion  County,  83  ballots  for  contestant  were 
thrown  out  on  the  ground  that  names  on  the  ticket  for  justice  of  the 
peace  and  constable  were  scratched  off  and  other  names  written  on  in 
red  or  purple  ink.  Persons  desiring  to  vote  for  these  officers  ai)plied 
at  the  only  store  in  the  place  for  ink  and  could  only  get  the  kiud  of 
ink  used  in  scratching  these  tickets,  and  hence  the  use  of  the  red  or 
purple  ink.  The  committee  do  not  think  that  under  the  circumstauces 
these  voters  should  be  disfranchised,  notwithstanding  the  terms  of 
the  statute,  as  the  marking  was  not  done  for  any  improper  or  unlawful 
purpose  and  the  use  of  this  ink  was,  in  a  manner,  compulsory.  The 
committee  count  the  83  votes  for  contestant.  (See  McCrary  on  Elec- 
tions, sections  400,  401,  404.) 

In  Marion  County  large  numbers  of  duly  registered  voters  were  un- 
lawfully stricken  from  the  registration  lists  by  E.  M.  Gregg,  super- 
visor of  registration,  in  reckless  disregard  of  the  law,  and,  as  your 
committee  believe,  with  the  deliberate  and  criminal  purpose  of  dejiriv- 
ing  the  Republican  voters  of  the  county  of  their  rights. 

In  Ocala  precinct,  No.  1,  one  hundred  and  tea  duly  registered  voters 


GOODRICH    VS.    BULLOCK,  587 

had  their  names  stricken  from  the  registry  list  after  having  registered 
under  the  new  law  and  without  any  legal  authority  for  such  action. 
These  one  hundred  and  ten  voters  tendered  their  ballots  for  contestant 
and  were  refused  the  right  to  vote. 

In  Fantville  precinct,  No.  20,  twenty-nine  voters  were  in  like  manner 
stricken  from  the  registry. 

In  Millwood  district,  No.  2,  fifty-one  names  were  stricken  from  the 
registry. 

In  Reddick  precinct  ten  names  were  stricken  from  the  registry. 

In  Flemington  precinct,  No.  3,  forty-two  names  were  stricken  from 
the  registry. 

In  Cotton  Plant  district.  No.  4,  nineteen  were  stricken  from  the  regis- 
try and  seven  on  the  registry  were  rejected  at  the  polls,  making  twenty- 
six. 

In  Summerville  district,  No.  8,  seven  were  stricken  from  the  registry. 

In  Blichville  precinct  one  was  stricken  from  the  registry. 

In  Shady  Grove  district,  No.  7,  nineteen  were  stricken  from  the  reg- 
istry and  five  whose  names  remained  on  the  registry  were  rejected  at 
the  polls,  making  twenty-four. 

In  Whitesville  precinct,  No.  8,  nine  were  stricken  from  the  registry. 

In  Citra  precinct.  No.  16,  twenty-four  were  stricken  from  the  registry. 

In  Anthony  district,  No.  17,  nine  were  stricken  from  the  registry. 

In  Mcintosh  district,  No.  2,  thirty-three  were  stricken  from  the  regis- 
try and  fifteen  others  were  rejected  at  the  polls  whose  names  were  on 
the  registr;y  list. 

In  Silver  Springs  precinct  eight  were  stricken  from  the  registry  and 
three  registered  voters  were  rejected. 

In  Silver  Springs  Park  precinct.  No.  24,  three  were  stricken  from  the 
registry  and  ten  registered  voters  were  rejected  at  the  polls. 

In  Camden  district,  No.  25,  two  registered  voters  were  rejected. 

In  Spar  precinct,  No.  27,  twelve  voters  were  rejected  and  two  were 
stricken  from  the  registry. 

In  Belleview  district,  precinct  No.  26,  twenty-one  registered  voters 
were  rejected,  and  eleven  were  stricken  from  the  registry. 

In  Lake  Weir  precinct  one  was  stricken  from  the  registry. 

In  Stanton  precinct  three  were  stricken  from  the  registry. 

The  above  account  of  persons  stricken  from  the  registry  includes  only 
those  who  were  lawful  voters,  had  been  registered  under  the  new  law, 
tendered  ballots  for  contestant  at  their  proper  voting  places,  and  were 
unlawfully  rejected. 

These  466  rejected  voters  in  Marion  County  had  all  been  duly  regis- 
tered. Some  366  of  the  number  had  their  names  stricken  from  the  reg- 
istry rolls  just  previous  to  the  election.  The  supervisor  of  registration 
refused  to  allow  the  Eepublican  campaign  committee  to  have  a  copy  of 
the  registration  list,  or  to  inspect  the  list.  He  also  refused  to  restore 
names  that  he  had  stricken  from  the  rolls,  after  having  been  ordered  by 
the  county  commissioners  to  restore  them.  He  closed  his  office  on  the 
day  before  election,  and  thus  prevented  a  large  number  of  applicants 
from  obtaining  transfer  certificates.  He  refused  to  submit  his  registra- 
tion books  to  the  county  commissioners,  as  the  law  required. 

These  466  duly  qualified  voters  appeared  at  their  proper  polling  places 
and  tendered  their  votes  for  contestant,  which  votes  were  rejected. 
The  names  of  100  of  them  were  still  on  the  registry  lists,  and  yet  the 
precinct  inspectors  rejected  the  vot^s,  either  saying  that  they  could  not 
find  the  name  on  the  registry,  or  setting  up  some  frivolous  pretext  for 
rejection.    Voters  duly  registered  were  required,  in  violation  of  law,  to 


688  GOODEICH    VS.    BULLOCK. 

present  their  registration  certificates.  Otliers,  who  presented  registra- 
tion certificates,  were  rejected  because  their  Dames  had  been  stricken 
from  the  registry.  The  illegal  action  of  Supervisor  Gregg  can  not  be 
permitted  to  disfranchise  these  voters. 

Most  of  the  tickets  in  these  various  precincts  were  preserved  in  Re- 
publican side  boxes,  and  the  names  of  the  various  voters  so  disfran- 
chised, with  the  pages  of  the  record  establishing  their  right  to  vote, 
and  the  tender  of  their  ballots,  will  bo  found  on  pages  15  to  28  of  contest- 
ant's brief. 

These  466  rejected  votes,  added  to  the  83  votes  not  counted  in  Faunt- 
ville,  make  549  votes  to  be  added  to  contestant's  vote  in  Marion  County. 

NASSAU  COUNTY. 

District  No.  5. — The  registration  and  election  in  this  district  were 
wholly  fraudulent.  The  return  shows  that  there  were  141  votes  polled 
in  this  precinct,  and  the  evidence  conclusively  establishes  that  there 
were  but  58  qualified  voters  then  residing  in  the  district.  The  poll-list 
of  those  voting  was  destroyed,  but  it  sufficiently  appears  that  more  than 
half  of  the  persons  voting  were  strangers  in  the  precinct,  and  had  no  resi- 
dence therein.  A  fraudulent  registration  was  made  up  for  the  precinct, 
and  it  is  impossible,  from  the  evidence,  to  ascertain  the  legal  vote  cast. 
The  returns  gave  121  to  ccntestee  and  13  to  contestant.  The  committee 
reject  the  poll,  and  deduct  121  from  contestee's  vote,  and  13  from  con- 
testant's. Eight  qualified  voters  testify  that  they  voted  for  contestant. 
These  are  the  only  votes  proved,  and,  under  the  rule  of  law  tliat  when 
the  return  is  impeached  only  such  votes  as  are  proved  aliunde  can  be 
counted,  we  give  these  8  votes  to  contestant,  reducing  the  amount  to 
be  deducted  from  his  vote  in  this  precinct  to  5.     (Rec.  pp.  577-579,  587.) 

District  No.  1. — In  district  No.  1  one  qualified  voter,  who  tendered 
a  vote  for  contestant,  had  his  vote  rejected. 

District  No.  12. — In  district  No.  12  eighteen  qualified  voters  tendered 
their  votes  for  contestant,  and  the  votes  were  rejected. 

District  No.  3. — In  district  No.  3  an  election  was  held  as  provided 
by  law,  but  no  return  was  made.  (Rec,  p.  593).  Twenty-four  duly 
qualified  voters  are  proved  to  have  voted  for  contestant  in  this  dis- 
trict, and  that  number  should  be  credited  to  him. 

District  No.  9.— The  returns  from  this  precinct  give  contestee  221, 
and  contestant  38  votes.  The  election  was  held  three-quarters  of  a 
mile  from  the  established  polling  place  without  notice  to  the  voters.  It 
does  not  appear  in  evidence  that  there  was  general  knowledge  of  the 
change.  It  does  appear,  however,  that  the  registering  officer  of  the  pre- 
cinct was  taken  sick  and  that  during  his  illness  and  in  his  absence  his 
deputy  refused  to  register  'any  Republican  voters.  On  the  last  day  of 
registration  the  registrar  returned,  but,  after  a  few  minutes,  closed  his 
registration  office,  went  away,  and  staid  away  all  day,  thereby  pre- 
venting a  large  number  from  registering. 

It  further  appears  that  this  same  registering  officer  placed  Democrats 
upon  the  registration  who  were  not  qualified.  While  the  holding  of  the 
election  at  a  different  place  from  that  provided  by  law  would  not  vitiate 
the  poll,  provided  due  notice  was  given  of  the  change,  so  that  knowl- 
edge of  the  fact  would  coroe  to  both  political  parties,  yet,  in  this  case, 
the  change  without  notice,  added  to  the  conclusive  evidence  of  the 
fraudulent  acts  of  the  registrar  and  his  deputy  in  closing  the  registra- 
tion office  against  Republican  voters,  and  in  illegally  registering  un- 
qualified Democrats,  so  vitiate  the  integrity  of  the  poll  as  to  destroy 


GOODRICH    VS.    BULLOCK.  589 

the  value  of  the  return  and  make  it  impossible  to  say  that  the  election 
at  this  poll  was  a  fair  one.  The  committee,  accordingly,  reject  the  poll 
and  deduct  from  coutestee  and  contestant  the  221  and  38  votes  returned 
for  them,  respectively. 

District  No.  13. — In  District  No.  13,  Briceville,  79  votes  are  returned, 
all  for  coutestee.  Nineteen  of  this  number  are  proved  to  have  been 
non-residents  and  to  have  been  fraudulently  registered.  (Rec,  pp.  586, 
587, 596).  The  least  that  we  can  do  with  this  precinct  is  to  deduct  from 
the  vote  of  coutestee  the  nineteen  fraudulent  votes  proved  to  have  been 
cast  for  him. 

Summing  up  the  above-noted  changes  in  Nassau  County,  the  com- 
mittee find  43  votes  to  be  added  to  and  43  votes  to  be  deducted  from 
contestaut's  vote,  and  so  make  no  change  in  it.  Three  hundred  and 
sixty-one  votes  should  be  deducted  from  coutestee. 

ALACHUA  COUNTY. 

Aredondo  District,  No.  12. — There  were  returned  from  this  poll  for 
coutestee  222  votes  and  for  contestant  59.  One  hundred  and  sixty- 
nine  voters  testify  to  having  voted  for  contestant.  Twenty-four  oth- 
ers testified  that  they  tendered  votes  for  contestant  and  that  their  votes 
were  rejected.  Thirty-one  others  are  proved  to  have  tendered  votes  for 
contestant  and  their  votes  were  rejected.  All  these  voters  were  either 
registered  or  had  a})plied  for  registration  and  been  fraudulently  refused. 
N.  A.  CoUison,  CTnited  States  supervisor,  was  not  permitted  to  act,  un- 
der the  pretense  that  he  lived  in  a  quarantined  town,  although  it  ap- 
I)ears  from  the  evidence  that  there  was  free  intercourse  between  the 
two  towns.  A  person  designated  by  him  and  not  subject  to  the  same 
objection  was  also  refused  permission  to  act  in  the  supervisor's  place, 
though  it  had  been  agreed  that  he  might  act.    (Kec,  pp.  319,  320.) 

The  inspectors  did  not  commence  canvassing  the  votes  until  over  an 
hour  after  closing  the  polls,  and  pistol  firing  was  indulged  in,  evidently 
with  the  intention  of  keeping  witnesses  away  from  the  count.  Every 
conceivable  obstruction  was  interposed  in  this  district  to  prevent  Re- 
publicans from  registering.  The  names  of  a  large  number  of  Repub- 
lican voters  were  arbitrarily  stricken  from  the  registration  books,  and 
the  names  of  those  so  stricken  were  not  published,  as  required  by  law. 
The  evidence  conclusively  shows  that  the  return  from  the  district  is 
fraudulent  and  false.  The  222  votes  returned  for  coutestee  should  be 
deducted  from  his  vote,  as  there  is  no  proof  of  contestee's  vote  aside 
from  the  vitiated  returns;  and  contestant  should  be  credited  with  224 
votes  actually  cast  or  tendered  for  him,  or  165  more  than  were  given 
him  in  the  retnrns.  The  names  of  the  voters  in  district  No.  12  will  be 
found  on  pages  51  to  56  of  contestant's  brief. 

Hayne  Station,  District  No.  17. — Sixty-four  votes  duly  tendered  for 
contestant  were  rejected  and  should  be  counted  for  him.  (Rec,  pp. 
331-370.) 

District  No.  7. — Seventy-two  legally  qualified  voters  tendered  their 
votes  for  contestant  and  were  refused.  Nearly  all  of  these  voters  were 
registered  and  the  remainder  had  made  due  effort  to  be  registered. 

District  No.  20. — Forty  nine  duly  qualified  electors  tendered  their 
votes  for  contestant  and  were  refused. 

District  No.  10. — Thirty-three  duly  qualified  voters  tendered  their 
votes  for  contestant  and  were  refused. 

District  No.  6. — Fifty  duly  qualified  electors  tendered  their  votes 
for  contestant  and  were  refused. 


590  GOODRICH    VS.    BULLOCK. 

District  No.  2. — Forty-six  legally  qualified  electors  tendered  ballots 
for  contestant  and  were  rejected. 

District  No.  16. — Six  legal  voters  tendered  ballots  for  contestant  and 
were  refused. 

District  No.  11. — Ninety  legally  qualified  voters  tendered  their  ballots 
for  contestant  and  were  rejected. 

District  No.  3. — Ten  legally  qualified  electors  tendered  their  ballots 
for  contestant  and  were  refused. 

District  No.  19. — Seventeen  qualified  voters  tendered  ballots  for  con- 
testant and  were  rejected. 

District  No.  1,  Waldo. — Twenty-three  duly  qualified  voters  tendering 
their  votes  for  contestant  were  rejected. 

District  No.  15. — Fifty  qualified  electors  tendering  their  votes  for  con- 
testant were  rejected. 

it  appears  from  the  evidence  that  nearly  all  these  voters  had  been 
registered  under  the  old  registry;  that  they  applied  for  registration 
under  the  new  law  and  were  either  told  that  they  were  already  regis- 
tered or  were  denied  the  opportunity  of  getting  transfers;  that  those 
who  failed  to  get  on  the  registry  or  to  get  proper  transfers  appeared 
at  the  time  and  place  advertised  for  the  meeting  of  the  county  commis- 
sioners, whose  duty  it  is,  under  the  law,  to  correct  all  errors  of  regis- 
tration, and  that  only  one  of  the  county  commissioners  appeared,  and 
he,  not  being  a  quorum,  refused  to  act.  In  this  county,  therefore,  there 
was  an  entire  failure  on  the  part  of  the  county  officers  to  discharge  their 
duty  with  reference  to  registration. 

They  had  no  meeting,  as  the  law  required,  to  perfect  the  registration 
lists  and  they  did  not  publish  the  names  stricken  from  the  registry. 
The  supervisor  of  registration  neglected  to  perform  the  duties  of  his 
office,  so  far  as  Eepublican  voters  were  concerned.  The  registration 
lists  of  the  county  were,  therefore,  of  little  value,  not  because  of  the 
neglect  of  the  Republican  voters,  who  were  thoroughly  organized  and 
made  every  effort  to  get  their  names  properly  on  the  registration  lists, 
but  because  of  the  negligent  and  unlawful  acts  of  the  officers  charge(l 
with  the  duty  of  registration.  Under  these  circumstances  the  com- 
mittee hold  that  the  proof  of  the  qualification  of  the  before-mentioned 
voters  who  sought  to  cast  their  ballots  for  contestant  is  satisfactory, 
and  the  votes  should  be  counted  as  if  cast. 

The  committee  accordingly  add  to  contestant's  vote  in  Alachua 
County  677  votes,  and  deduct  from  contestee's  vote  222  votes. 

HAMILTON  COUNTY. 

District  No.  3. — Thirteen  votes,  duly  tendered  for  contestant  by  legal 
voters,  were  rejected  on  the  ground  that  the  voters  were  charged  with 
having  changed  their  residences  from  one  place  to  another  in  the  same 
voting  precinct.  This,  if  true,  would  not  interfere  with  their  right  to 
vote. 

District  No.  2. — One  hundred  and  four  votes  cast  for  contestant  and 
2  for  contestee  were  not  counted  on  the  ground  that  there  was  a  print- 
er's dash  under  the  names  of  some  of  the  candidates  on  the  tickets.  We 
do  not  think  that  this  was  such  a  distinguishing  mark  as  authorized  the 
rejection  of  these  ballots.  One  hundred  and  four  votes  should  be  added 
to  contestant's  vote  and  two  to  contestee's. 

In  this  district  there  were  also  18  votes  tendered  for  contestant  re- 
fused which  should  be  counted. 


GOODRICH    N^S.    BULLOCK.  591 

District  N^o,  1. — Sixteen  votes  are  claimed  in  district  No.  1,  but  tbe 
evidence  m  regard  to  tbeu)  is  not  quite  conclusive. 

District  JVb.  7. — Forty-eight  votes  for  contestant  were  not  counted 

because  of  a  printer's  dash  ( )  separating  each  name  on  the  ticket. 

These  votes  should  be  counted.  (See  McCrary  on  Elections,  2d  ed., 
§  104.) 

District  No.  5. — Eighteen  duly  qualified  voters  tendered  votes  for 
contestant  and  were  rejected.     They  should  be  counted. 

The  committee  accordingly  add  199  votes  to  contestant's  returned 
vote  in  Hamilton  County. 

DUVAL  COUNTY. 

District  No.  2. — Thirty-two  persons  tendered  votes  for  contestant,  and 
were  rejected.  It  does  not  appear  from  the  evidence  for  what  reason 
they  were  rejected,  or  that  they  had  made  efforts  to  be  registered,  and 
therefore  we  do  not  count  them. 

District  No.  8. — Twelve  of  the  14  claimed  legal  voters  were  duly 
qualified,  tendered  their  votes  for  contestant  and  were  rejected,  and  13 
ballots  for  contestant  were  illegally  rejected  on  the  claim  that  they  had 
some  specks  on  them.  One  Democratic  ticket  was  rejected  in  the  same 
way.  One  witness  testified  that  he  could  discover  nothing  on  them,  an- 
other that  there  appeared  to  be  small  ink  spots.  These  tickets  ought 
not  to  have  been  rejected. 

District  Nd.  21. — Eight  out  of  the  14  claimed  legal  voters  who  ten 
dered  their  votes  for  contestant  should  be  counted,  and  9  votes  for  con- 
testant not  counted  under  pretense  that  they  were  marked  should  be 
counted  for  him.  The  rejection  of  these  9  ballots  was  on  the  ground 
that  there  was  a  printer's  dash  on  the  ticket  in  a  place  where  no  person 
was  named  for  a  particular  office. 

District  No.  23. — One  qualified  elector  was  illegally  denied  the  right 
to  vote  for  contestant. 

District  No.  17. — Twenty-nine  qualified  voters  tendered  their  votes 
for  contestant  and  were  rejected.    They  should  be  counted. 

District  No.  18. — Three  legally  qualified  voters  who  tendered  their 
votes  for  contestant  were  rejected. 

District  No.  20. — Of  the  57  who  tendered  their  votes  for  contestant 
39  were  duly  registered  and  qualified  voters  and  should  be  30unted. 

District  No.  6. — Three  qualified  voters  were  illegally  denied  the  right 
to  vote  for  contestant,  and  45  votes  cast  for  contestant  were  not  counted 
because  the  name  of  a  candidate  for  justice  of  the  peace  was  written 
on  the  ticket  with  a  red  lead-pencil.  We  think  these  votes  should  be 
counted. 

District  No.  12. — Twelve  votes  cast  for  contestant  were  illegally  not 
counted,  on  the  ground  that  they  were,  marked.    There  were  pencil- 
marks  on  the  tickets  made  by  the  judges  pushing  tliem  into  the  box  with  • 
a  pencil. 

District  No.  15. — Seventeen  qualified  voters  tendered  their  votes  for 
contestant  and  were  rejected,  and  9  votes  cast  for  contestant  were  ille- 
gally not  counted. 

District  No.  7. — Three  qualified  voters  tendered  ballots  for  contestant, 
and  their  ballots  were  not  received. 

District  IG,  or  tcard  No.  2. — Seventy-five  duly  qualified  and  regis 
tered  voters  tendered  their  votes  for  contestant,  and  were  refused ;  they 
should  be  counted.  The  others  claimed  in  this  district  the  committee 
do  not  allow. 


592  GOODRICH    VS.    BULLOCK. 

District  No.  19. — Tweuty-eight  legally  qualified  electors  tendered 
tbeir  votes  for  contestant,  and  were  rejected. 

District  No.  22. — Sixty-two  qualified  voters  tendered  ballots  for  con- 
testant, and  were  rejected. 

District  No.  13. — Eighteen  qualified  voters  tendered  their  votes  for 
contestant,  and  were  rejected. 

In  this  county  the  supervisor  of  registration  resorted  to  dilatory 
tactics  to  prevent  Republicans  from  registeriug,  aud  thereby  prevented 
a  large  number  of  qualified  voters  from  being  registered.  (Record,  pp. 
116-18.) 

The  committee  add  385  votes  to  the  vote  returned  for  contestant  in 
Duval  County. 

MADISON  COUNTY. 

Cherry  Lake  district,  No.  7. — At  this  district  the  regularly  appointed 
Democratic  election  inspectors  appeared  at  the  polling  i^lace,  but  hav- 
ing in  some  way  received  notice  of  an  intended  raid  on  the  ballot  box, 
declined  to  hold  an  election.  Thereupon  the  voters  prCiSent  i)roceeded 
to  elect  a  board  of  inspectors.  These  inspectors  refused  to  hold  the 
election  at  the  place,  learing  danger,  and  so  adjourned  the  election  to  a 
point  three-quarters  of  a  mile  distant.  The  Democrats  refused  to  par- 
ticipate in  this  election  although  they  had  due  notice  of  it.  One  huu 
dred  and  thirty-one  votes  were  cast  for  contestant,  canvassed,  and  duly 
returned  to  the  supervisor  of  elections  for  the  county,  but  the  canvass- 
ing board  of  the  county  refused  to  consider  the  return.  It  was  the  fault, 
first,  of  the  Democratic  election  inspectors,  and  second,  of  the  Demo- 
cratic voters  themselves,  that  the  few  Democratic  vot'is  there  were  in 
the  precinct  were  not  cast.  The  committee  count  for  contestant  the 
131  votes  cast  for  him  in  this  precinct. 

Madison  district.  No.  1. — At  this  district  an  election  was  duly  held, 
as  provided  by  law,  and  615  votes  were  cast.  After  the  close  of  the 
polls,  the  Democratic  inspectors  delaj^ed  for  some  two  hours  the  counting 
of  the  vote,  and  then  proceeded  very  slowly,  occupying  two  hours 
more  in  counting  some  seventy  votes.  When  they  had  proceeded  thus 
far,  an  armed  body  of  white  Democrats  appeared  at  the  polls,  and 
forcibly  carried  oft'  the  ballot  box.  Consequently,  no  return  was  made 
of  this  vote. 

There  was  a  side  election  held,  by  Democrats  alone,  at  the  same  poll, 
to  inform  the  governor  whom  the  Democratic  voters  desired  for  county 
commissioners.  This  box  was  undisturbed,  and  return  was  duly  made 
of  the  result  to  the  Democratic  chairman  of  the  county.  Two  hundred 
and  six  votes  were  cast  at  the  side  box.  Presumably  all,  or  nearly  all, 
of  the  Democrats  voting  in  the  precinct  voted  at  this  side  box.  There 
is  evidence  that  some  four  did  not.  Inasmuch  as  the  party  friends  of 
contestee  destroyed  the  evidence  of  the  result  of  the  election  at  this 
precinct,  and  because  of  the  disturbed  condition  in  the  county  at  the 
time  this  contest  was  pending,  making  it  dangerous  to  attempt  to  take 
testimony  in  the  county,  the  committee  take  the  result  at  the  side  box 
and  the  other  evidence  in  regard  to  the  vote  as  the  best  evidence  attain- 
able as  to  the  result  at  this  precinct.  Accordingly,  they  count  210  votes 
for  contestee,  and  405  votes  for  contestant. 

Hickstown  district.— Here  an  election  was  regularly  held,  and,  after 
the  polls  were  closed,  the  Democratic  inspectors  refused  to  canvass  the 
votes,  fearing,  or  pretending  to  fear,  violence.  The  ballot-box,  and  the 
tickets,  however,  were  preserved.  At  this  district  contestant  received 
100  votes,  and  contestee  30  votes,  and  the  committee  count  the  votes 
as  cast. 


GOODEICH   VS.    BULLOCK.  593 

Oreenville  district,  No.  5. — The  electiou  was  regularly  held  iu  this 
district;  215  votes  were  cast,  of  which  contestant  received  130,  and 
contestee  85.  The  box  and  returns  were  delivered  by  the  Democratic 
inspectors  to  J.  A.  Eedding,  a  Democrat,  who  assisted,  as  clerk,  at  the 
counting  of  the  vote,  to  be  by  him  delivered  to  the  county  supervisor 
of  election.  He  took  it  to  his  store  and  late  at  night,  while  he  was 
engaged  in  putting  up  his  books,  a  body  of  armed  white  men  came  to 
his  store  and  by  deception  gained  access  to  the  store  room  and  forcibly 
carried  away  the  box  so  that  no  return  was  made.  The  committee 
couHt  for  contestant  the  130  votes  cast  for  him  and  for  contestee  the  85 
votes  cast  for  him  at  this  i)recinct.  They  also  count  19  additional  votes 
for  contestant,  tendered  and  illegally  rejected  at  this  poll. 

Hamburg  district,  No.  6. — At  this  district  an  election  was  held  iu  au 
orderly  manner,  but  just  before  the  closing  of  the  polls  an  armed  body 
of  mounted  men,  variously  estimated  at  from  forty-four  to  ninety,  rode 
down  upon  the  polls  and  seized  and  carried  away  the  ballot-box.  They 
were  white  men  and  friends  of  contestee.  The  evidence  shows  that 
259  Republicans  voted  there  that  day.  There  is  no  evidence  as  to  what 
the  Democratic  vote  was.  The  committee  accordingly  count  259  for 
contestant. 

Elaville  district,  No.  2. — The  returns  irom  this  district  gave  contestant 
only  29  votes.  J.  H.  Stripling,  United  States  supervisor,  was  refused 
admission  to  the  polling  place  by  the  precinct  inspectors,  which  refusal 
discredits  the  return.  Being  refused  permission  to  act  as  United  States 
supervisor,  he  took  his  place  outside  of  the  polling  place,  distributed 
Republican  tickets,  and  kept  account  of  the  number  voted.  From  his 
evidence  it  appears  that  97  instead  of  29  Republican  votes  were  cast  for 
contestant.  No  attempt  is  made  to  refute  or  discredit  this  testimony, 
and  the  unlawful  action  of  the  inspectors  of  electiou  leaves  it  as  the  only 
valid  evidence  of  the  vote.  Counting  the  vote,  however,  as  claimed  in 
contestant's  brief,  which  is  the  method  most  liberal  to  contestee,  the 
committee  add  68  to  contestant's  vote  and  deduct  a  like  number  from 
the  vote  of  contestee. 

Macedonia  district. — In  Macedonia  district.  No.  11,  twenty-nine  votes 
only  are  returned  for  contestant.  The  proof  shows  that  he  received  at 
least  65  votes  at  this  poll.  The  committee  add  36  to  contestant's  vote 
and  deduct  a  like  number  from  that  of  contestee,  following  the  liberal 
method ^f  counting  conceded  in  contestant's  brief. 

The  committee  add  1,147  votes  to  contestant's  vote  iu  Madison 
County  and  325  to  contestee's,  and  deduct  from  contestee's  vote  104, 
making  a  net  change  of  926  in  contestant's  favor. 

To  sum  up  the  result  in  all  the  counties : 

Net  changes  in  favor  of  contestant  in — 

Columbia  County 127 

Putnam  County 15 

Volusia  County 31 

Orange  County 40 

Marion  County 549 

Nassau  County 361 

Alachua  County 899 

Hamilton  County 199 

Duval  County 385 

Madison  County 926 

Total 3,532 

Bullock's  returned  majority 3,195 

Majority  for  Goodrich : 337 

H.  Mis.  137 38 


594  GOODRICH   VS.   BULLOCK. 

The  committee  recommend  the  passage  of  the  following  resolutions : 
Eesolved,  That  llobert  Bullock  was  not  elected  a  Representative  in  the 

Fifty-first  Congress  from  the  second  Congressional  district  of  Florida, 

and  is  not  entitled  to  retain  a  seat  therein. 
Resolved,  That  Fred.  S,  Goodrich  was  elected  a  Eepresentative  in  the 

Fifty-first  Congress  from  the  second  Congressional  district  of  Florida, 

and  is  entitled  to  the  seat. 


VIEWS   OF  THE   MINORITY. 


(1)  Eegistration  law.    Power  of  legislature  to  enact. 

"  The  right  of  suffrage  is  regulated  by  the  States,  and  while  the  legis- 
lature of  a  State  can  not  add  to,  abridge,  or  alter  the  constitutional 
qualifications  of  voters,  it  may  and  should  prescribe  proper  and  neces- 
sary rules  for  the  orderly  exercise  of  the  right  resulting  from  these 
qualifications.  It  can  not  be  denied  that  the  power  to  enact  a  registra- 
tion law  is  within  the  power  to  regulate  the  exercise  of  the  elective 
franchise  and  preserve  the  purity  of  the  ballot." 

(2)  Return.    Evidence  necessary  to  overthrow. 

"  Before  the  ofl&cial  return  can  be  properly  rejected,  there  must  be 
satisfactory  proof  that  the  proceedings  in  the  conduct  of  the  election 
or  in  the  return  of  the  vote  were  so  tainted  with  fraud  that  the  truth 
can  not  be  correctly  ascertained  from  the  returns.  In  other  words,  the 
returns  must  be  accepted  as  true  until  they  are  clearly  shown  to  be 
false." 

(3)  Registration.     Whert,  new  certificate  necessary  under  Florida  law. 
Eegistration  is  not  necessary  when  a  voter  has  changed  his  residence 

from  one  place  to  another  in  the  same  voting  precinct.  "  While  section 
8  of  the  act  of  June  7, 1887,  may  possibly  admit  of  a  different  construc- 
tion, we  are  inclined  to  the  opinion  that  a  mere  change  of  residence  from 
one  house  to  another  in  the  same  voting  precinct  should  not  deprive 
an  elector  of  his  right  to  vote." 

(4)  Ballot.    Distinguishing  mark. 

A  printer's  dash  separating  the  names  of  candidates  on  a  ticket  is 
not  a  distinguishing  mark  which  would  justify  the  rejection  of  the 
ballots  under  the  Florida  statute. 

(5)  ISTo  registration. 

The  opinion  of  the  committee  as  to  the  votes  of  the  county  where 
there  was  no  registration  is  concurred  in. 

(6)  Votes  not  registered.    Presumed  to  he  properly  rejected. 

Certain  votes  "were  rejected  by  the  inspectors  because  the  names  of 
the  persons  offering  them  were  not  found  on  the  registration  list.  In 
the  absence  of  proof  to  the  contrary  there  is  a  legitimate  presumption 
that  they  were  properly  rejected.    It  has  been  repeatedly  decided  by 

695 


596  GOODRICH   VS.    BULLOCK. 

the  House  of  Eepresentatives  that  the  acts  of  proper  officers,  acting 
within  tbe  sphere  of  their  duties,  must  be  presumed  to  be  correct,  un- 
less shown  to  be  otherwise." 

(7)  Ballot.    Distinguishing  marie. 

The  ballots  partly  written  in  red  ink  or  red  pencil  were  properly  re- 
jected, their  rejection  being  directly  required  by  the  law  of  Florida. 

(8)  Votes  rejected.    Most  of  them  properly  so. 

"We  submit  that  a  careful  examination  of  the  testimony  will  show 
that  from  want  of  suffisient  intelligence  to  understand  the  registration 
laws  a  large  majority  of  the  persons  whose  votes  were  rejected  for  fail- 
ure to  register  properly  had  not  complied  with  the  requirements  of  the 
law  in  obtaining  transfers,  in  having  themselves  reregistered  after  a 
change  of  residence,  and  in  giving  attention  to  other  matters  absolutely 
necessary  to  render  them  qualified  electors  in  the  State  of  Florida. 


VIEWS  OF  THE  MINORITY. 


Mr.  Maish  presented  tlie  following  as  the  views  of  the  minority: 

The  undersigned,  dissenting  from  the  conclusions  reached  by  the 
majority  of  the  Committee  on  Elections  in  the  above-cited  case,  submit 
herewith  the  reasons  for  their  dissent,  as  follows : 

The  Second  Congressional  district  of  Florida  is  composed  of  the 
following  counties,  to  wit:  Madison,  Hamilton,  Suwannee,  Columbia, 
Baker,  Nassau,  Duval,  Clay,  Bradford,  Alachua,  Putnam,  Marion, 
Sumter,  Lake,  Orange,  Osceola,  Dade,  Brevard,  Volusia,  and  St. 
John's.  At  the  election  for  Kepresentative  in  Congress,  which  was 
held  on  the  6th  of  November,  1888,  Kobert  Bullock  was  the  Democratic 
candidate  and  Frederick  S.  Goodrich  was  the  Eepublican  candidate. 
The  result  of  the  election,  as  certified  by  the  secretary  of  state,  was 
as  follows : 


Coonties. 


Alachua.. 

Baker 

Bradford . 
Brevard . . 

Caay 

Colombia 

Dade 

Duval . . . . 
Hamilton. 

Lake 

Madison.. 


Robert 

Fred.  S. 

Bullock. 

Goodrich. 

rote9. 

YoUt. 

2,067 

1,362 

378 

152 

1,007 

361 

472 

232 

565 

480 

1,039 

977 

95 

45 

1,406 

2,688 

741 

353 

1,330 

900 

723 

179 

Connties. 


Marion... 
Nassau... 
Orange . . . 
Osceola. . . 
Putnam . . 
St  John's 
Sumter... 
Suwannee 
Volusia  . . 


Robert 
Bollock. 


Totet. 
1,938 

976 
1,849 

434 
1,170 
1,049 

784 
1,008 

982 


20, 015 


Fred.S. 
Goodrich. 


Votet, 
1.780 

901 
1,552 

224 
1,340 
1,624 

308 

784 
1,175 


16, 817 


It  thus  appears  that  according  to  the  official  result  of  the  election  as 
ascertained  and  declared,  according  to  law,  the  contestee  received  a 
majority  of  3,195  votes.  Before  proceeding  to  consider  the  testimony 
as  disclosed  by  the  record,  it  may  not  be  inappropriate  to  state  that, 
according  to  the  census  of  1880,  the  population  of  the  counties  compos- 
ing this  district  consisted  of  70,947  whites  and  05,040  colored,  thus 
showing  a  majority  of  5,907  white  people.  In  addition  we  call  atten- 
tion to  the  fact  that  at  the  Congressional  election  held  in  this  district 
in  1884  the  Democratic  candidate  received  17,248  votes,  and  the  Ee- 
publican candidate  received  15,857  votes,  showing  a  majority  of  1,391 
lor  the  Democratic  candidate.  At  the  Congressional  election  held  in 
1886  the  Democratic  candidate  in  this  district  received  18,892  votes, 
and  the  Eepublican  candidate  received  15,763  votes,  showing  a  majority 
of  3,129  votes  in  favor  of  the  Democratic  candidate.  There  was  no 
contest  made  either  in  1884  or  1886,  and  the  result  of  the  election  in 
each  year  was  accepted  as  fair  by  all  concerned. 

597 


598  GOODRICH   VS.    BULLOCK. 

As  the  principal  ground  of  contest  in  this  case  is  the  alleged  refusal 
of  the  Inspectors  to  receive  votes  tendered,  because  the  persons  tender- 
ing them  had  not  been  duly  registered,  we  deem  it  proper  to  call  atten- 
tion to  certain  provisions  of  the  election  laws  of  Florida.  The  right  of 
suffrage  is  regulated  by  the  States,  and  while  the  legislature  of  a  State 
can  not  add  to,  abridge,  or  alter  the  constitutional  qualiiications  of  voters, 
it  may  and  should  prescribe  proper  and  necessary  rules  for  the  orderly 
exercise  of  the  right  resulting  from  these  qualifications.  It  can  not  be 
denied  that  the  power  to  enact  a  registration  law  is  within  the  power 
to  regulate  the  exercise  of  the  elective  franchise  and  preserve  the  purity 
of  the  ballot.  The  law  of  Florida  in  force  on  the  6th  day  of  November, 
1888,  contained,  among  others,  the  following  provisions: 

First.  No  persons  can  vote  unless  they  are  duly  registered  according  to  law. 

Second.  The  elector  is  required,  under  oath,  to  give  such  description  of  himself  as 
•will  be  sufficient  to  identify  his  person  with  the  act  of  registi'ation. 

Third.  The  governor  appoints  a  supervisor  ot  registration  in  each  county,  who  ap- 
points a  registration  officer  for  each  election  district,  whose  duty  it  is  to  attenito  the 
registration  of  electors  in  such  district. 

Fourth.  It  is  the  duty  of  the  board  of  county  commissioners  to  divide  the  county 
into  election  districts,  which  said  districts  may  be  changed  by  th  '  board  at  anytime 
at  least  three  months  before  any  general  election,  desiguating  each  district  by  a  num- 
ber, and  at  the  most  suitable  point  to  establish  a  voting  place  or  a  precinct. 

Filth.  Immediately  upon  the  expiration  of  the  time  for  registration  at  the  several 
precincts,  each  district  registration  officer  shall  subscribe  in  his  book  an  oath  that  he 
has  faithfully  executed  his  duties  as  the  registration  officer  at  such  precinct,  and 
shall  deliver  his  book  and  all  blanks  left  in  his  possession  to  the  supervisor  of  regis- 
tration, and  thereupon  the  supervisor  shall  proceed  to  make  up  the  registration  lists 
for  the  several  precincts. 

Sixth.  Each  elector  upon  being  registered  shall  be  furnished  by  the  registration 
officer  with  a  certificate,  which  shall  be  numbered  by  consecutive  numbers  for  each 
district,  and  shall  contain  a  statement  of  his  name,  age,  color,  occupation,  place  of 
resideuce,  and  dale  of  registration  as  entered  in  the  registration  book,  which  certifi- 
cate shall  be  signed  by  the  registration  officers.  No  person  shall  be  allowed  to  vote 
in  any  other  election  district  than  the  one  for  which  he  is  registered  nor  shall  any 
person  whose  name  does  not  appear  upon  the  registration  list  be  allowed  to  vote, 
unless  he  produces  and  exhibits  such  certificate  to  the  managers  of  election. 

Seventh.  When  the  name  of  any  elector  shall  have  been  wrongfully  erased  the 
same  may  be  restored  by  order  of  the  county  commissioners  if  the  supervisor  on  ap- 
plication and  proper  proofs  fails  so  to  do. 

Eighth.  In  case  of  the  removal  of  an  elector  from  one  residence  to  another  in  the 
same  district,  or  from  one  district  to  another  district  m  the  same  county,  such  elector 
sLall  notify  the  supervisor  of  registration  and  shall  surrender  hiscertificate  of  regis- 
tration to  such  officer,  who  shall  enter  the  fact  upon  the  registration  book  and  shall 
give  such  elector  a  new  certificate  in  accordance  with  such  change  of  resideuce. 

Ninth.  No  elector  removing  from  one  residence  district  or  ward  to  another  shall  be 
allowed  to  register  or  vote  without  a  trausfer  of  registration,  as  above  provided. 

Tenth.  It  is  made  the  duty  of  the  county  commissioners  to  examine  and  revise  the 
list  of  registered  electors,  erasing  therefrom  the  names  of  such  as  have  died  or  re- 
moved from  the  county,  or  who  are  otherwise  disqualified  to  vote,  and  restoring  such 
names  as  have  been  improperly  taken  off  by  the  supervisor  of  registration. 

Eleventh.  At  each  election  the  supervisor  of  registration  shall  furnish  the  inspec- 
tors of  election  at  each  election  district  with  a  copy  of  the  registration  book  for  such 
district,  the  names  in  which  have  been  arranged  alphabetically  and  certified  by  hira 
to  be  correct,  for  the  care  and  custody  of  which  the  inspectors  receiving  the  same 
shall  be  responsible,  and  which  they  shall  return  lo  the  supervisor  of  registration 
within  three  days  after  the  close  of  the  election. 

We  submit  that  a  careful  examination  of  the  testimony  will  show 
that  from  want  of  suflicient  intelligence  to  understand  the  registration 
laws  a  large  majority  of  the  persons  whose  votes  were  rejected  for  fail- 
ure  to  register  properly  had  not  complied  with  the  requirements  of  the 
law  in  obtaining  transfers,  in  having  themselves  reregistered  after  a 
change  of  residence,  and  in  giving  attention  toother  matters  absolutely 
necessary  to  render  them  qualified  electors  in  the  State  of  Florida. 


GOODRICH  VS.  BULLOCK.  699 

ALACHUA  COUNTY. 

It  is  claimed  by  the  majority  of  the  committee  that  in  Arredonda  dis- 
trict No.  12  in  this  county  the  ofiBcial  returns  should  be  rejected  as 
fraudulent;  that  the  222  votes  returned  for  contestee  should  be  deducted 
from  his  poll,  and  that  the  coutestaut  should  be  credited  with  224  votes 
as  actually  cast  or  tendered  for  him,  making  165  more  than  he  received 
by  the  official  returns.  Before  the  official  return  from  this  election  pre- 
cinct can  be  i>roperly  rejected,  there  muet  be  satisfactory  proof  that 
the  proceedings  in  the  conduct  of  the  election  or  in  the  return  of  the 
vote  were  so  tainted  with  fraud  that  the  truth  can  not  be  correctly  as- 
certained from  the  returns.  Inother  words,  the  returns  must  be  accepted 
as  true  until  they  are  clearly  shown  to  be  false.  As  specimens  of  the 
testimony  introduced  by  contestant  to  impeach  the  returns  from  this 
precinct,  we  extract  the  following: 

Joseph  Williams  testifies,  p.  271: 

Q.  Who  was  the  Repnblican  or  Democratic  candidate  for  Congress  iu  this  coanty? — 
A.  I  can  not  remember,  as  there  was  so  many  of  them. 

Q.  Is  it  not  a  tact  that  you  never  inquired  or  asked  on  the  day  yon  got  your  ticket 
and  did  not  know  when  you  went  to  vote  whether  there  was  a  candidate  for  Congress 
that  year  or  not? — A.  No,  sir;  I  did  not  exactly  know. 

v^.  Do  you  know  what  Congress  is?  Is  Congress  a  man  or  a  woman f — A.  It  is  a 
man,  I  suppose. 

Q.  Is  it  an  old  man  or  a  young  man;  black  or  white? — A.  I  could  not  tell. 

Q.  What  was  the  name  you  remembered  on  your  ticket? — A  I  do  not  remember 
any  name  on  my  ticket  but  Goodrich;  I  know  them,  but  do  not  remember  now.  I 
do  not  know  whether  he  was  running  for  governor;  they  told  me  so. 

Q.  You  remember  distinctly  that  Goodrich's  name  was  on  your  ticket  for  governor; 
because  you  had  it  read  to  you  was  the  reason  why  you  remember  it  so  distinctly; 
because  you  wanted  to  vote  for  him  for  Congress,  so  as  to  have  the  State  have  a  Re- 
publican governor  once  more  ? — A.  Yes,  sir. 

Monroe  Welsh  testifies,  p.  272: 

Q.  Who  was  running  for  governor  on  your  ticket? — A.  F.  S.  Goodrich. 
Q.  Was  he  the  man  you  wanted  for  Governor  ? — A.  Yes,  sir. 

Fortune  Sturks  testifies,  p.  287 : 

Q.  Was  Mr.  Barnes  on  your  ticket  for  Congress,  and  did  you  meet  anybody  this 
morning  and  tell  them  so? — A.  Yes,  sir. 

Q.  What  Mr.  Barnes  was  it;  the  Mr.  Barnes  that  lives  at  Gainesville  and  who  nsed 
to  be  sherilf  ? — A.  I  dou't  know  ;  I  voted  the  Republican  ticket. 

Q.  The  parties  who  you  spoke  to  on  the  road  this  morning,  did  yon  not  tell  them  that 
you  did  not  know  what  ticket  you  voted,  only  that  you  know  you  voted  for  Mr.  Barnes 
for  Congress,  and  that  they  told  you  so,  and  that  is  all  you  know  aboui  the  ticket  ? — 
A.  Yes,  sir ;  that  is  all  I  know  about  it,  and  my  privilege  was  to  vote,  and  that  is  all 
I  know  about  it. 

William  Starks  testifies,  p.  292  : 

Q.  Who  did  you  vote  for  for  governor? — A.  Mr.  Goodrich. 

Q.  Why  did  you  want  to  vote  for  Mr.  Goodrich  for  governor;  was  it  so  you  could 
have  a  Republican  governor  once  more  in  this  State,  and  have  the  control  of  the 
courts  and  the  counties  ;  is  that  so? — A.  Yes,  sir. 

Q.  Are  you  positive  he  is  the  man  you  wanted  for  governor  ? — A.  According  to  the 
nominees  I  am  going  by. 

Bernett  Kelly  testifies,  p.  301: 

Q.  Did  you  vote  at  the  last  election  at  Arredonda? — A.  Yes,  sir. 
Q.  Who  did  you  vote  for  Congress,  the  Republican  or  Democratic  candidate?— 
A.  I  don't  know,  sir. 

Perry  Luker  testifies,  p.  302 : 

Q.  Can  you  read  or  write  ? — A.  A  little. 

Q.  Did  you  read  the  ticket  you  voted  at  the  last  election  ? — ^A.  Yes,  sir. 


600  GOODRICH    VS.    BULLOCK. 

Q.  Are  you  a  Democrat  or  a  Eepublican  ?— A.  From  the  ticket  I  voted  I  mnst  be  a 
tie  of  both, 

Q.  Was  Bullock  a  candidate  for  Presidential  elector  on  the  ticket  you  voted  f — A. 
It  was  stated  that  Bnllock  was  a  candidate  for  Congress  on  the  ticket  I  voted. 

As  to  the  testimony  of  the  fifty-four  witnesses  for  contestant  found  in 
the  record  from  page  307  to  page  320,  inclusive,  we  submit  that  it  can 
not  be  considered,  for  the  reason  that  it  was  taken  after  the  expiration 
of  the  forty  days  allowed  by  law.  If,  however,  said  testimony  should 
be  considered  at  all,  it  shows  that  some  of  the  witnesses  did  not  vote 
because  their  names  were  not  found  on  the  registration  list;  some  of 
them  are  not  able  to  state  for  whom  they  voted,  and  others  testify  that 
they  voted  for  the  contestee.  To  show  the  insufficiency  of  the  testi- 
mony found  in  the  record,  from  page  339  to  page  359,  inclusive,  we  pre- 
sent the  following : 

Jessie  Owens  testifies  on  cross-examination  that  if  from  any  cause  his 
name  was  erased  from  the  Arredouda  precinct  registration  list,  he  did 
not  apply  to  the  supervisor  of  registration  of  Alachua  County  to  have 
his  name  restored  before  ke  offered  to  vote. 

Charles  Yorick  testifies  on  cross-examination,  p.  343,  that  he  could 
not  read  the  name  of  the  candidate  for  Congress  on  his  ballot,  and  does 
not  in  reality  know  whose  name  was  on  his  ballot. 

James  Bullock  testifies  on  cross-examination,  p.  344,  that  when  he 
offered  his  ballot  to  the  inspectors  they  gave  as  a  reason  for  not  re- 
ceiving it  that  they  could  not  find  his  name  on  the  list,  and  that  he  did 
not  apply  to  the  supervisor  of  registration  of  Alachua  County  to  have 
his  name  restored. 

Henry  Adams  testifies  on  cross-examination,  p.  345,  that  his  name 
was  not  on  the  registration  list  at  the  Arredonda  precinct ;  that  it  was 
on  the  list  at  the  Jouesville  precinct,  and  that  he  did  not  apply  to  Mr. 
Saddler,  the  supervisor  of  registration,  to  have  his  name  transferred 
on  account  ot  the  yellow  fever. 

Isaac  Thompson  testifies  on  cross-examination,  p.  346,  that  he  did 
not  notify  the  supervisor  of  registration  of  his  change  of  residence,  and 
did  not  ask  him  to  note  the  same  on  the  registration  books  and  give 
him  a  certificate. 

Lewis  McCray  testifies  on  cross-examination,  p.  347,  that  he  does  not 
know  who  the  candidates  for  Congress  were  at  the  last  general  election, 
and  does  not  know  for  whom  he  voted. 

David  Simmons  testifies  on  cross-examination,  p.  349,  that  he  really 
does  not  know  whose  name  was  on  his  ticket  for  Congress. 

Jordan  Perry  testifies  on  cross  examination,  p.  350,  that  he  does  not 
know  how  many  Congressional  candidates  there  were,  and  does  not 
know  whose  names  were  on  his  ticket  for  Congress  at  the  last  election. 

Cubuer  Johnson  testifies  on  cross-examination,  p.  351,  that  he  does 
not  know  whether  he  voted  the  Congressional  ticket  and  does  not  know 
whose  name  was  on  his  ticket. 

Bill  Neal  testifies  on  his  direct  examination,  p.  352,  that  he  did  not 
vote  at  the  last  general  election,  but  offered  to  vote  at  Arredouda.  It 
appears  from  the  registration  list,  p.  323,  that  his  name  had  been  erased. 

Joe  Bradley  testifies  on  his  direct  examination,  p.  353,  that  he  does 
not  know  what  State  he  lives  in. 

Shedrick  Bell  testifies  on  cross-examination,  p.  364,  that  he  does  not 
know  what  State  officers  or  what  candidate  for  Congress  he  voted  for. 

The  testimony  of  the  witnesses  to  be  found  in  the  record  from  page 
381  to  page  398,  inclusive,  is  not  sufficient  to  justify  the  rejection  of  the 
official  returns.    The  contestant  cla-ims  that  0.  H.  DeBose  distributed 


GOODRICH    VS.    BULLOCK.  601 

tickets  to  thirty  one  persons  at  this  precinct,  who  otfered  to  rote  for  the 
contestant,  and  whose  votes  were  refused,  but  it  appears  from  an  ex- 
amiuation  of  his  testimony  (pp.  381,  382,  and  383)  tliat  he  does  not  know 
how  many  persons  to  whom  he  distributed  tickets  actually  voted  or  how 
they  voted. 

Moses  Duncan  testifies  on  cross-examination,  p.  386,  that  he  does 
not  know  whether  the  name  of  Robert  Bullock  was  on  the  ticket  for 
Congress  which  he  voted  or  not. 

Ned  Baskins  testifies  on  cross-examination,  p.  387,  that  he  does  not 
know  whether  the  name  of  Robert  Bullock  for  Congress  was  on  his 
ticket  or  not,  and  that  he  does  not  know  for  whom  he  voted. 

Nelson  Johnson  testifies  on  cross-examination,  p.  388,  that  the  name 
of  the  man  for  whom  he  voted  is  spelled  "  G-w-ar-re-t." 

Richard  Clark,  sr.,  testifies  on  cross-examination,  p.  389,  that  L.  A. 
Barnes  was  his  choice  for  Congress,  and  that  he  voted  for  him. 

Simon  Phillips,  p.  391,  testifies  on  cross-examination,  tbat  he  was 
told  L.  A.  Barnes  was  on  the  ticket  for  Congress,  and  that  he  desired 
to  vote  that  ticket. 

John  Burnett  testifies  on  cross-examination  that  he  voted  for  Ship- 
man  for  Congress. 

Ben  Clifton  testifies  on  cross-examination  that  Shipman  was  running 
for  Congress  and  that  he  voted  for  him. 

Joseph  Davis  testifies  on  cross  examination,  p.  394,  that  he  does  not 
know  who  was  the  Republican  or  Democratic  candidate  for  Congress, 
and  does  not  know  for  whom  he  voted. 

Solomon  Harris  testifies  on  cross-examination,  p.  394,  that  he  voted 
for  Mr.  Shipman  for  Congress. 

Murray  BuUard  testifies  on  cross-examination,  p.  397,  that  he  voted 
for  L.  A.  Barnes  for  Congress,  and  that  he  was  his  choice. 

Aleck  Brown  testifies  on  cross-examination,  p.  398,  that  he  believes 
he  voted  for  Mr.  Shipman  as  a  Republican  candidate  for  Congress. 

The  testimony  of  the  witnesses  to  be  found  in  the  record  from  page 
426  to  450,  inclusive,  is  equally  unsatisfactory. 

George  Hall  testifies  on  cross-examination,  p.  427,  that  he  voted  for 
V.  J,  Shipman  as  a  Republican  candidate  for  Congress. 

Echard  Doley  testifies  on  cross-examination,  p.  429,  that  he  is  unable 
to  state  positively  lor  whom  he  voted. 

Peter  Davis  testifies  on  cross-examination,  p.  429,  that  he  voted  for 
Mr.  Goodrich,  but  does  not  know  for  what  office. 

Lewis  Spell  testifies  on  cross-examination,  p.  429,  that  he  would  not 
know  the  names  of  the  persons  on  his  ticket,  or  for  what  offices  they 
were  candidates,  if  he  should  hear  them  called. 

Abram  Young  testifies  on  cross-examination,  p.  430,  that  he  voted  for 
Mr.  Goodrich  for  governor. 

Charles  Neal  testifies  on  cross-examination,  p,  433,  that  he  voted  for 
Goodrich  for  governor. 

Wilson  Douglass  testifies  on  cro?s-examination,  p.  437,  that  he  does 
not  know  how  many  candidates  there  were  for  Congress  in  the  Second 
Florida  district  in  the  last  election  or  for  whom  he  voted. 

Dick  Mavins  testifies  on  cross-examination,  p.  438,  that  he  does  not 
remember  a  single  name  on  the  ticket,  and  would  not  remember  them 
even  though  they  were  mentioned  to  him. 

Solomon  Joshua,  sr.,  testifies  on  cross-examination,  p.  438,  that  he 
voted  for  Mr.  Goodrich  and  Mr.  Shipman  as  Presidential  electors. 

Isam  Cunningham  testifies  on  cross-examination,  p,  439,  that  he  voted 
for  Mr.  Shipman  for  Congress. 


602  GOODRICH   VS.    BULLOCK. 

Eobbin  Clifton  testifies  on  cross-examination,  p.  439,  that  Mr.  Good- 
rich was  on  the  ticket  for  Presidential  elector  and  that  he  voted  for 
him  as  such. 

George  Bessant  testifies  on  cross-examination,  p.  442,  that  in  truth 
and  in  fact  he  does  not  know  whose  name  was  on  his  ballot  for  Con- 
gressional and  national  positions. 

Vanus  White  testifies  on  cross-examination,  }).  442,  that  he  does  not 
know  and  will  not  swear  for  whom  he  voted. 

James  Certain  testifies  on  cross-examination,  p.  443,  to  the  same  ef- 
fect. 

July  Belton  testifies  on  cross-examination,  page  444,  that  as  a  mat- 
ter of  fact  he  can  not  swear  anything  about  the  ticket  he  voted  or  what 
names  were  on  it,  or  whether  there  was  anything  on  it  about  Congress 
or  not. 

Benjamin  Drayton  testifies  on  cross-examination,  p.  445,  that  as  a 
matter  of  fact  he  could  not  swear  who  were  on  his  ticket  when  he 
voted  it  and  what  oflBces  they  were  candidates  for. 

Charley  Drayton  testifies  on  cross-examination,  p.  446,  to  the  same 
effect. 

K.  M.  Witt  testifies  on  his  direct  examination,  p.  446,  that  he  was 
not  a  registered  voter  of  Arredouda  district  No.  12;  that  he  did  not 
offer  to  register  before  the  registration  oflicer  duriug  the  month  of 
September,  1888,  when  the  books  were  opened  for  registration ;  that  he 
went  to  the  supervisor  of  registration  to  secure  a  transfer  trom  Dis- 
trict No.  7  to  District  No.  12,  but  he  was  unable  to  fix  the  date;  that 
the  supervisor  told  him  that  he  would  have  to  go  to  the  commissioners, 
who  were  to  meet  at  Doig's  Mill,  and  that  when  he  went  to  Doig's 
Mill  there  was  only  one  of  the  commissioners  i)resent,  and  he  did  not 
succeed  in  getting  a  transfer. 

William  Reuben  testifies  on  cross-examination,  p.  448,  that  he  does 
not  know  anything  about  the  ticket  he  voted  so  as  to  be  able  to  swear 
what  it  was. 

James  Porter  testifies  on  cross-examination,  p.  448,  that,  with  the 
exce])tion  of  Martin's  name  on  his  ticket,  he  can  not  tell  what  it  was  or 
anything  about  it. 

William  Woods  testifies  on  cross-examination,  p.  449,  to  the  same 
effect. 

The  testimony  of  the  witnesses  found  in  the  record  from  page  450  to 
454,  inclusive,  can  not  be  considered  for  the  reason  tbat  it  was  taken 
after  the  expiration  of  the  torty  days  allowed  by  law  and  when  tbe.e 
was  no  one  i)resent  to  cross  examine  th"  witnesses  on  bebalf  of  thecon- 
testee.  As  to  the  construction  of  contcbtant  tbat  obstructions  were  in- 
terposed to  prevent  Eepublicans  from  registering  at  this  precinct,  we 
submit  that  ihe  testimony  relied  upon  does  not  support  the  charge. 

Mr.  E.  P.  Axtell  says  on  cross-examii  ation,  p.  306,  tbat  be  is  not 
able  to  give  the  name  of  a  single  person  who  went  in  his  individual 
capacity  before  the  supervisor  and  was  refused  registration  after  com- 
plying with  the  requirements  of  the  law. 

Mr.  James  I  learns  testifies  on  cross-examination,  p.  372,  that  he  does 
not  know  anything  about  the  evidence  offered  by  the  parties  which  en- 
titled them  to  registration  or  transfer. 

It  appears  from  the  testimony  of  contestant's  own  witnesses  that  if 
at  any  time  the  registration  books  were  not  0|»eu  at  the  supervisor's 
oflice  on  the  day  appointed  by  law,  or  of  the  board  of  county  commis- 
sioners failed  to  meet  to  hear  applications  for  the  corrections  of  the 
books,  according  to  (be  notice  given,  such  failure  was  due  entirely  to 


GOODRICH   vs.   BULLOCK.  603 

the  prevalence  of  the  yellow  fever  in  that  community.  We  submit  that 
the  testimony  relied  upon  is  altogether  too  vague  and  indefinite  to  jus- 
tify the  rejection  of  the  official  return  from  this  precinct. 

It  is  claimed  by  the  majority  that  04  votes  duly  tendered  for  contest- 
ant were  rejected  at  Hague  Station,  No.  17,  and  that  they  should  be 
counted  for  him.  In  our  opinion  the  testimony  relied  upon  is  not  suf- 
ficient to  sustain  this  claim. 

As  to  the  claim  of  the  majority  that  72  legally  qualified  voters  ten- 
dered their  votes  for  contestant  in  district  No.  7,  and  were  improperly 
rejected,  we  think  the  testimony  relied  upon  shows  that  the  persons 
referred  to  had  failed  to  comply  with  the  requirements  of  the  law  in 
regard  to  registration.  In  answer  to  the  claim  that  Eepublican  voters 
were  excluded  from  the  polls  at  this  precinct  by  force,  we  invite  atten- 
tion to  the  following  testimony: 

M.  J.  MADDOX,  being  duly  sworn  as  a  witness  for  contestee,  deposes  as  follows  : 

Question.  What  is  your  name,  age,  and  profession? — Answer.  M.  J.  Maddox;  age, 
32;  profession,  teacher. 

Q.  Are  yon  a  white  or  colored  person  ? — A.  Colored  man. 

Q.  What  election  precinct  in  Alachua  County  do  yon  live  in  ? — A.  Precinct  No.  7. 

Q.  Did  you  go  to  the  polls  at  the  last  general  election  in  Precinct  No.  7  ? — A.  I  did. 

Q.  While  there  did  you  see  any  armed  paities  around  or  about  the  polls  or  any 
other  evidence  of  intimidation  of  voters? — A.  Certainly  I  saw  nothing  of  the  kind; 
I  saw  a  gun  on  the  ground;  it  did  not  occur  to  me  at  the  time  that  it  was  there  for 
the  purpose  of  intimidation ;  it  was  in  the  possession  of  a  colored  man  in  a  buggy; 
I  tallied  \\ith  him  about  it. 

Q.  Are  you  a  Republican  or  a  Democrat  in  politics? — A.  I  am  a  Repnblican. 

Q.  How  long  hove  you  resided  in  the  Gainesville  precinct,  Alachua  County  ? — A. 
More  than  lour  years. 

Q.  At  the  regular  Republican  county  convention  called  for  the  nomination  of  Re- 
publican candidates  for  the  different  county  offices,  were  there  any  colored  men  nomi- 
nated by  that  convention  for  auj"^  office;  and,  if  yea,  what  were  their  names  and  for 
what  offices  were  they  nominated  ? — A.  There  were ;  M.  M.  Lewey  for  county  judge 
and  I.  C.  Sebastion  for  county  assessor. 

Q.  Were  they  regarded  as  good  citizens,  well  qualified  to  discharge  the  duties  of 
the  offices  for  which  they  were  nominated? — A.  They  were  both  regarded  as  good 
citizens,  and  one  of  them,  Mr.  Lewey,  was  pre-eminently  qualified  for  the  position, 
but  ihe  other,  Mr.  Sebastion,  was  by  some  regarded  as  not  qualified. 

Q.  Was  there  any  charge  or  complaint  that  the  nomination  of  Lewey  and  Sebastion 
had  been  procured  by  any  unfair  or  improper  methods  ?— A.  None  whatever,  to  my 
knowledge. 

Q.  Were  yon  present  and  had  full  opportunity  to  observe  the  proceedings  of  that 
convention  ?— A.  I  was  present,  and  did  have  full  opportunity  to  observe  the  proceed- 
ings. 

ED.  FRAZIER,  being  sworn,  says : 

Question.  What  is  your  name,  age,  place  of  residence,  and  occupation  ? — A.  Edward 
Frazit-r;  age,  28;  I  reside  in  Gainesville;  am  a  common  laborer. 

Q.  Are  you  a  while  or  colored  man  ?— A,  I  am  a  colored  man. 

Q.  In  what  election  precinct  in  Alachua  County  do  you  live? — A.  Gainesville  pre- 
cinct. 

Q.  Were  you  present  throughout  the  day  of  the  election  held  in  Precinct  No.  7,  on 
November  6,  18ri8?— A.  I  was. 

Q.  State  whether  or  not  it  was  quiet  and  peaceable. — A.  Yes ;  it  was. 

Q.  Did  you  take  an  active  part  on  election  day  among  the  voters  of  your  color? — 
A.  Yes,  sir. 

Q.  Did  you  distribute  any  tickets  on  election  day;  if  so,  about  how  many? — A.  I 
distributed  about  58  to  colored  voters. 

Q.  Do  you  know  how  many  of  these  tickets  were  voted  by  colored  men  on  that 
day?— A.  Yes;  54  were  voted. 

Q.  Did  not  a  great  many  more  colored  people  vote  the  Democratic  ticket  at  the 
last  election  than  at  former  political  elections? — A.  Yes,  sir. 

Q.  Do  you  kuow  ot  any  special  reasons  why  so  many  colored  voters  voted  th<'  Dem- 
ocratic ticket  at  the  last  election?— A.  Yes,  sir;  the  reason  was  that  there  was  a 
split  among  (he  colored  people,  and  they  declared  before  ihey  would  vote  the  split 
ticket  that  they  would  vote  a  straight  Democratic  ticket. 

Q.  Were  these  54  tickets  that  you  say  were  voted  by  colored  voters  and  the  ticket 


^04  GOODRICH  VS.   BULLOCK. 

you  voted  yourself  straight  Democratic  tickets  or  not  ? — A.  They  -were  straight  Dem- 
ocratic tickets. 

B.  F.  DAWKINS,  being  duly  sworn  for  contestee,  deposes  and  says : 

Question.  State  name,  age,  occupation,  and  place  of  residence. — Answer.  B.  F. 
Dawkins ;  39  years  old ;  policeman  ;  Gainesville,  Fla. 

Q.  Were  you  at  the  election  held  in  Gainesville  precinct  in  November  last ;  and, 
if  so,  in  what  capacity  did  you  act  ?— A.  I  was ;  a  quarantine  officer  at  the  time,  and 
ordered  at  the  polls  by  the  chief  quarantine  officer  of  the  county. 

Q.  State  what  your  instructions  were  and  what  you  did  on  that  day. — A.  My  in- 
structions were  to  keep  the  crowd  from  crowding  the  polls  or  the  piazza,  which  I 
did. 

Q.  What  was  the  reason  for  keeping  the  people  from  crowding  together  at  the  polls 
or  elsewhere? — A.  There  were  two  reasons;  Ist,  the  inspectors  said  that  they  could 
not  conduct  the  election  with  such  crowded  windows,  and  asked  me  to  keep  them 
from  off  the  piazza  and  allow  only  two  up  at  the  window  at  one  time;  2d,  they  did 
not  want  the  people  living  in  the  town  at  that  time  to  mix  with  the  people  that  had 
refuged  from  here  on  account  or  the  yellow- fever  epidemic. 

Q.  You  were  at  the  polls  throughout  the  day;  did  you  see  any  persons,  armed  or 
not  armed,  interfere,  or  attempt  to  interfere,  with  the  right  of  any  elector  to  vote  for 
the  candidate  of  his  choice? — A.  I  was  at  the  polls  from  the  time  they  opened  in  the 
morning  until  eleven  o'clock  at  night;  I  did  not  see  any  one  armed,  nor  any  one  in- 
terfered with  from  voting  for  any  one  he  chose. 

Q.  Was  it  or  was  it  not  an  exceptionally  quiet  and  peaceable  election  ? — A.  The 
most  peaceable  I  ever  saw  with  such  a  crowd. 

Q.  Was  there  more  or  less  electioneering  going  on  on  the  ground  ? — A.  There  was. 

Q.  Did  you  see  any  colored  men  electioneering  for  the  success  of  the  Democratic 
ticket? — A.  I  did;  I  saw  several  around  electioneering  for  the  success  of  the  Demo- 
cratic ticket. 

Q.  Did  you  hear  any  colored  men  express  an  opinion  how  the  box  was  going? — 
A.  I  did ;  I  heard  a  good  many  say  that  they  thought  it  would  go  Democratic. 

Q.  Did  you  hear  them  assign  any  reason  why  the  colored  voters  were  changing 
from  the  Republican  to  the  Democratic  ticket? — A.  They  said  they  were  not  satisfied 
with  the  Republican  candidates. 

J.  C.  BAILIS,  being  duly  sworn  for  the  contestee,  deposes  and  says: 

Question.  State  your  name,  age,  occupation,  and  residence. — Answer.  J.  C.  Bailis; 
48  years  old  ;  clerk ;  Gainesville,  Fla. 

Q.  Were  you  present  at  the  election  held  in  the  Gainesville  precinct  in  November 
last,  and,  if  so,  in  what  capacity? — A.  I  was;  in  the  capacity  of  poll  clerk. 

Q.  Mr.  Drake,  a  witness  for  the  contestant,  has  stated  in  his  opinion  an  error  was 
made  by  yon  in  the  transposition  of  the  two  Congressional  candidates'  names,  Bull- 
ock and  Goodrich;  state  if  any  transposition  was  necessary;  if  so,  was  any  error 
made  therein  ? — A.  There  was  no  transposition  made;  none  was  necessary.  No,  there 
was  no  error  made ;  there  was  no  chance  for  any  error  in  the  way  of  transposition. 

Q.  The  returns  show  that  the  Republican  Presidential  electors  received  more  votes 
at  the  Gainesville  box  than  the  Republican  Congressional  candidates;  Mr.  Drake  at- 
tempts to  account  for  this  by  a  supposed  error  of  yours  in  transposition;  you  say 
there  was  no  error  in  transposing  the  name;  how  do  you  account  for  the  difference 
in  the  vote? — A.  Well,  I  account  for  it  from  the  fact  that  Mr.  Bullock  would  natur- 
ally draw  some  votes  from  the  Republican  votes;  there  are  of  my  own  knowledge 
JTortheru  men  here  who  told  mo  that  they  voted  for  the  county  Democratic  and  Con- 
gressional candidates,  Robert  Bullock ;  in  other  words,  voted  the  whole  Democratic 
ticket  except  the  Presidential  electors;  that  they  were  National  Republicans,  but 
could  not  vote  with  the  negro. 

Q.  What  State  are  you  a  native,  and  how  long  have  you  resided  in  Florida? — A. 
Native  of  New  York  State,  and  resided  in  Florida  about  seven  years. 

Q.  State,  if  you  know,  what  action  was  taken  by  the  sheriff  ou  the  day  of  the 
election  to  keep  the  poll  from  being  too  crowded,  and  at  whose  request,  and  for  what 
reason  ? — A.  The  room  was  very  dark,  and  that  it  was  a  dark  day ;  the  police  were 
unable  to  keep  the  door  and  window  clear;  at  the  general  request  of  the  managers 
of  the  election  the  sheriff  was  asked  to  clear  the  yard,  and  admit  voters  only  in  groups 
of  two  and  three,  in  order  to  give  all  an  opportunity  to  vote  without  crowding,  and 
to  lessen  the  danger  of  infection  from  yellow  fever,  as  it  was  reported  that  several 
suspected  cases  were  present  on  the  grounds ;  no  objections  were  made  to  this  action 
ou  the  part  of  the  sheriff,  and  the  voting  proceeded  in  an  orderly  manner  till  the 
closing  of  the  polls,  and  more  rapidly  than  previous  to  this  action.  It  is  a  fact,  too, 
that  the  yellow  fever  broke  out  in  the  house  in  two  days  after  the  election  in  which 
the  polling-place  was  held. 

Q.  Was  any  rioting  or  intimidation  of  voters,  or  was  the  election  a  quiet  and  peace- 


GOODRICH  VS.   BULLOCK.  605 

able  one  ? — A.  There  was  no  rioting  or  intimidation,  and  I  never  saw  a  more  quiet 
and  peaceable  election. 

Q.  Electors,  then,  were  allowed  to  deposit  their  ballot  for  the  candidates  of  their 
choice  without  hindrance  or  interference  from  any  one  ? — A.  I  saw  nothing  that 
could  be  construed  as  a  hindrance  or  interference. 

HART  JOHNSON,  a  witness  for  the  contestee,  being  sworn,  says  : 

Question.  What  is  your  name,  age,  and  place  of  residence  ? — Answer.  Hart  John- 
son ;  aged  30  years  ;  reside  in  Gainsville,  Fla. 

Q.  Where  were  you  on  the  6th  day  of  November,  1883  ? — A.  I  was  in  Gainsville. 

Q.  Were  you  at  the  polls  of  district  No.  7  that  day  ? — A.    I  was. 

Q.  Did  you  see  Mr.  Wienges,  the  sheriif,  or  any  of  his  deputies  around  with  Win- 
chester rifles  or  other  guns  on  that  day  ? — A.  I  did  not. 

Q.    Were  you  at  the  polls  all  day  ? — A.  I  was. 

Q.  If  there  was  any  intimidation  there  that  day,  and  if  there  had  been  any  per- 
sons armed  with  Winchester  rifles  or  other  guns,  would  you  have  seen  them  ? — A.  I 
would. 

Q.  And  you  say  you  did  not  see  anything  of  the  kind  that  day  ? — A.  No,  sir ;  I  did 
^ot. 

Q.  Describe  the  manner  in  which  the  election  was  conducted  as  to  voting. — A. 
They  were  placed  two  to  two ;  there  was  a  line  struck  from  the  gate  and  orders  given 
for  them  to  go  up  two  and  two. 

Q.  Why  were  the  people  placed  in  line  this  way  ?  Was  it  to  keep  the  people  from 
crowding  up  to  the  polls  ? — A.  It  was. 

Q.  Did  the  voting  go  on  more  rapidly  after  this  line  was  made  than  before? — A. 
There  was  more  quietness  kept  after  it  was  struck;  they  voted  more  regular  than  be- 
fore. 

Q.  Were  all  voters,  white  and  black,  Democrats  and  Republicans,  required  to  con- 
form to  this  rule  as  to  going  up  and  voting  two  by  two  ? — A.  They  were. 

Q.  It  is  not  ?  fact  that  the  county  board  of  health  gave  Mr.  Wienges,  the  chief 
quarantine  officer  of  this  county,  orders  to  keep  the  people  from  crowding  together 
as  much  as  possible  on  account  of  the  prevalence  of  yellow  fever  in  Gainsville  at 
that  time,  so  as  to  prevent  the  yellow  fever  from  spreading  f— A.  It  is  a  fact. 

Q.  Is  it  not  a  fact  that  the  white  and  colored  voters  were  joking  and  jesting  with 
each  other  in  regard  to  the  result  of  the  election  on  that  day  ? — A.  They  were. 

Q.  How  longhaveyou  beena  member  of  the  Republican  party  in  Alachua  County  ? — 
A.  About  twenty-four  years. 

Q.  Are  you  a  white  man  or  a  black  man  ? — A.  I  am  a  black  man. 

Q.  Is  it  not  a  fact  that  two  colored  men,  Lewey  and  Sebastian,  were  nominated 
for  the  offices  of  county  judge  and  county  tax  assessor  by  the  regularly  called  Repub- 
lican county  convention  in  this  county  previous  to  the  last  election  ? — A.  This  is  a 
fact. 

JAMES  B.  CULLEN,  being  duly  sworn  for  the  contestee,  deposes  and  says : 

Q.  State  your  name,  age,  occupation,  and  place  of  residence. — A.  James  B.  Cullen; 
48  years  old  ;  deputy  sheriff,  Gainesville,  Fla. 

Q.  State  how  long  you  have  been  a  resident  of  Florida,  and  where  you  came  from, 
and  what  brought  yon  here. — A.  I  have  been  [here]  over  twenty-three  years;  from 
New  York  State;  I  was  brevet  major  in  the  7th  Infantry  United  States  Army,  and 
was  ordered  here,  and  resigned  from  the  Army  in  1868,  and  have  remained  here  ever 
since. 

Q.  State  whether  or  not  you  were  at  the  polls  at  the  last  election  held  in  Novem- 
ber in  this  precinct,  number  7,  and  whether  there  was  any  intimidation  of  voters  at 
the  polls. — A.  I  was  at  the  polls  from  the  time  they  opened  until  they  closed.  There 
was  no  intimidation;  the  colored  men  were  by  themselves;  the  whites  kept  from 
them  on  account  of  hearing  of  suspects  of  yellow  fever  among  them,  and  the  election 
was  as  quiet  as  any  I  ever  saw.  I  was  at  the  polls  in  the  capacity  of  deputy  sheriff 
and  assistant  quarantine  officer.  Our  orders  were  from  the  board  of  health  to  keep 
the  crowd  from  gathering  in  large  numbers.     I  saw  no  guns  nowhere  on  the  grounds. 

Q.  State  whether  or  not  the  orders  of  the  board,  above  referred  to,  in  keeping  the 
crowd  from  gathering  in  large  numbers,  prevented  any  person  in  any  way,  shape,  or 
form,  or  in  any  way  hindered  or  delayed  them  from  voting. — A.  It  did  not. 

Q.  State  whether  you  saw  any  colored  people  working  in  the  interest  of  the  Demo- 
cratic ticket;  and,  if  they  gave  any  reasons  in  your  presence  for  so  doing,  state  them. — 
A.  There  was  a  good  many  working  for  the  success  of  the  Democratic  party.  The 
reason  of  this  action  of  the  voters  was  that  the  Republican  county  executive  had  dis- 
placed two  regularly  Republican  nominees,  colored  men,  and  put  two  white  men  on 
in  their  place.  The  colored  people  were  very  much  incensed  about  the  two  colored 
men  being  taken  down.  This  incense  was  shown  on  the  streets  of  Gainsville  before 
the  day  of  election,  and  they  did  not  intend  to  vote  the  Republican  ticket. 


606  GOODRICH    VS.    BULLOCK. 

Q.  State  if  you  are  familiar  with  the  elections  in  Florida  for  the  past  eighteen  or 
twenty  years;  and,  if  so,  whether  you  did  not  observe  a  greater  disposition  on  the 
part  of  the  colored  voters  to  break  away  from  party  lines  at  the  last  election  and  vote 
for  whom  they  please  than  ever  before. — A.  I  have  been  here  ever  since  the  first  elec- 
tion was  held  here  after  the  war,  and  at  most  every  election  as  deputy  sheriff.  I  did 
observe  a  greater  disposition  to  break  away  from  party  lines  than  heretofore,  and 
think  one  reason  was  that  they  was  left  to  some  extent  without  leaders  on  account 
of  the  yellow  fever. 

Q.  State  what  the  reason  was,  if  the  inspectors  gave  you  any,  for  keeping  the  crowd 
from  the  window. — A.  It  was  so  dark  is  one  reason,  and  nearly  suffocating  on  account 
of  heat,  being  only  one  window  by  which  we  could  vote  or  get  light.  After  that  they 
were  put  outside  of  the  gate,  and  the  election  or  voting  proceeded  very  rapidly  by 
letting  two  go  to  the  polls  to  vote  without  one  pushing  the  other,  as  was  done  hereto- 
fore. 

ARCH  GREEN,  being  duly  sworn  as  a  witness  for  contestee,  deposes  as  follows : 

Question.  What  is  your  name,  age,  place  of  residt-nce,  and  occupation? — ^Answer. 
Arch  Green  ;  age,  35;  Gainesville,  Fla.;  occupation,  teamster. 

Q.  Are  you  a  white  man  or  colored  man  ? — A.  Colored  man. 

Q.  What  election  precinct  in  Alachua  County  do  you  live  in? — A.  Gainesville  pre- 
cinct No.  7. 

Q.  Were  you  present  throughout  the  day  at  the  election  held  in  precinct  No.  7 
on  November  6,  1888  ? — A.  I  was. 

Q.  State  whether  or  not  the  election  was  quiet  and  peaceable? — A.  It  was  peace- 
able. 

Q.  Did  you  see  Mr.  Wienges,  the  chief  quarantine  oflScer  and  sheriff,  or  any  of  his 
deputies,  on  that  day  with  Winchester  rifles  and  threatening  to  interfere  with  the 
right  of  any  person,  white  or  black,  to  vote? — A.  No  ;  I  did  not. 

Q.  So,  then,  if  there  had  been  any  intimidation  of  voters  by  these  officers  on  that 
occasion  you  would  certainly  have  known  it  ? — A.  I  would. 

Q.  W^ere  you  at  the  polls  that  day  distributing  tickets;  and,  if  so,  what  was  the 
character  of  the  tickets  ? — A.  I  was  there  distributing  tickets ;  I  had  some  Demo- 
cratic tickets  and  some  Republican  tickets. 

Q.  About  how  many  straight  Democratic  tick  ts  did  you  distribute  to  colored 
voters  on  that  day  ? — A.  About  fifty  or  seventy-five,  I  suppose. 

Q.  About  how  many  of  these  Democratic  tickets  that  you  distributed  to  colored 
voters  on  that  day  you  have  reason  to  believe  were  voted? — A.  I  suppose  about  fifty 
that  I  was  sure  were  voted. 

Q.  Why  is  it  that  you  think  that  so  many  colored  men  voted  the  straight  Demo- 
cratic ticket  at  the  last  election  ;  was  it  because  some  of  the  white  Republican  nom- 
inees refused  to  run  on  the  ticket  with  the  colored  Republican  nominees  ? — A.  That 
is  the  very  reason  they  did  it;  because  we  had  some  white  nominees  on  the  ticket 
who  said  they  would  not  run  with  the  colored  nominees. 

S.  H.  WIENGES. 

Question.  What  is  your  name  and  place  of  residence  ? — Answer.  S.  H.  Wienges 
Gainesville,  Fla. 

Q.  Did  you  hold  any  official  position  in  Alachua  County  on  the  6th  day  of  Novem- 
ber, 1888;  if  so,  what  was  it? — A.  I  did;  I  was  sheriff  of  Alachua  County  and  chief 
quarantine  officer. 

Q.  Where  were  you  and  what  doing  on  the  6th  of  November,  1888  ? — A.  I  was  at 
the  voting  place  of  precinct  7,  Alachua  County,  and  acting  under  instructions  from 
the  board  of  health  principally. 

Q.  On  that  day  and  at  that  place  were  there  any  armed  men  around  the  polls  of 
precinct  7  ? — A.  I  did  not  see  any  myself,  but  heard  there  was  one  ])arty  with  a  gun 
before  I  got  there. 

Q.  Was  this  person  who  you  heard  had  a  gun  a  white  man  or  a  black  man,  Repub- 
lican or  Democrat? — A.  He  was  a  black  man,  and  I  presume  a  Republican. 

Q.  Did  you  have  any  deputies  there  who  were  armed  with  rifles  on  that  day  ? — A. 
I  did  not. 

Q.  You  have  stated  that  you  were  acting  principally  as  chief  quarantine  officer  un- 
der the  board  of  health  ;  state  what  your  instructions  were  from  said  board  ? — A.  My 
instructions  were  not  to  allow  crowds  to  congregate   for  fear  of  spreading  the  fever. 

Q.  Please  state  the  condition  relative  to  the  health  of  Gainesville  at  that  time. — 
A.  We  had  the  yellow  fever  here. 

Q.  Had  the  yellow  fever  been  epidemic  in  Gainesville  at  that  time  by  the  duly  con 
etituted  officers? — A.  It  was  declared  epidemic. 

Q.  In  the  discharge  of  your  duties  as  health  officer  was  there  any  discrimination 
made  by  you  or  those  acting  under  you  in  favor  of  or  against  either  the  Democratic 
or  Republican  electors? — A.  There  were  nonu,  only  in  one  case;  a  colored  man  who 


GOODRICH   VS.    BULLOCK.  607 

claimed  to  be  sick  asked  if  I  woald  not  get  him  to  the  polls  so  that  he  could  vote  and 
get  out  of  the  rain,  that  it  was  raining;  I  got  the  crowd  to  open  a  way  for  him  and 
passed  him  inside  of  the  line;  with  this  one  exception,  whenever  there  was  a  white 
man  thi  re,  my  instructions  was  to  my  deputy,  who  was  at  the  gate,  to  pass  one  white 
and  one  colored  at  a  time ;  if  no  white  man  was  present,  then  two  colored  men  was 
to  I  ass  at  a  time. 

Q  State  the  order  or  manner  of  voting  that  day,  as  to  placing  the  crowd  as  they 
approacli  the  polls. — A.  The  crowd  was  outside  of  the  yard,  about  60  or  70  feet  from 
the  house ;  they  were  allowed  to  come  in  two  at  a  time ;  two  at  the  piazza,  two  were 
held  back  at  the  gate  inside  of  the  line,  until  one  who  was  in  the  piazza  had  voted ; 
then  the  two  who  were  in  line  at  the  gate  were  permitted  to  go  to  the  polls,  and  two 
more  were  taken  inside  of  the  line. 

Q.  Prior  to  the  adoption  of  this  method  had  the  voters  crowded  the  polling  place  or 
not? — A.  They  had  ;  they  were  crowded  into  the  piazza  so  that  the  inspectors  called 
on  me  to  remove  them  from  the  window  so  as  to  allow  them  to  get  some  fresh  air. 

Q.  Please  give  a  description  of  the  room  in  which  they  voted,  the  number  of  win- 
dows, and  what  effect  crowding  around  the  voting  place  produced? — A.  The  room 
was  a  front  room  of  the  house,  with  two  doors  leading  into  it,  one  from  an  entry  and 
another  from  a  back  room ;  the  voting  was  done  from  the  window  on  the  south  side 
of  the  house ;  I  don't  know  whether  or  not  there  was  any  other  window  to  the  hoase. 

JOSEPH  SHANNON,  being  duly  sworn  for  the  contestee,  says : 

Question.  What  is  your  name,  age,  occupation,  and  residence  ? — Answer.  Joseph 
A.  Shannon;  47;  farmer;  Gainesville,  Alachua  County,  Florida. 

Q.  Were  you  present  at  the  general  election  held  in  November  last  at  precinct 
number  7,  Alachua  County  ? — A.  I  was. 

Q.  State  whether  or  not  the  election  was  quiet  and  peaceable? — A.  It  was. 

Q.  Were  you  there  throughout  the  day,  and  did  you  see  any  intimidation  of  voters 
by  members  of  either  political  party  ? — A.  I  was  there  and  saw  no  intimidation. 

Q  Did  yon  see  any  parties  there  armed  with  Winchester  rifles  or  other  guns  ? — A. 
I  saw  a  negro  there  with  a  double-barrel  shotgun. 

Q.  If  there  had  been  armed  parties  there,  interfering  with  the  right  of  any  person 
to  vote,  you  would  certainly  have  seen  and  known,  would  you  ? — A.  Yes ;  I  would 
known  it. 

Q.  You  state  positively  that  there  was  no  such  occurrence  at  the  polls  on  that  dav. — 
A.  I  do. 

W.  A.  WALTERS,  being  dnly  sworn  for  contestee,  says: 

Question.  State  your  name,  age,  and  profession. — Answer.  W.  A.  Walters;  39 
years  old ;  minister  of  the  gospel. 

Q.  Are  you  a  white  man  or  a  colored  man? — A.  Colored  man. 

Q.  Are  you  a  Democrat  or  Republican  in  politics  ? — A.  Republican. 

Q.  What  election  precinct  in  Alachua  County  do  you  live  in? — A.  Gainesville,  pre- 
cinct number  7. 

Q.  Were  you  present  throughout  the  day  at  the  election  held  in  precinct  number 
7,  in  Alachua  County,  in  1888? — A.  I  was  from  10  o'clock  until  the  polls  closed. 

Q.  State  whether  the  election  was  quiet  and  peaceable  or  not. — A.  It  was;  appeared 
80  to  me. 

Q.  Did  there  seem  to  be  a  friendly  feeling  between  the  white  and  colored  voters, 
and  were  they  not  laughing  and  jesting  about  the  election  with  one  another? — A. 
They  were. 

Q.  Did  you  see  any  armed  parties  there  threatening  to  interfere  with  the  right  of 
any  persons,  either  Republicans  or  Democrats,  to  vote?— A.  I  did  not. 

Q.  Did  you  see  Mr.  Winges,  the  sheriff  and  quarantine  officer,  or  any  of  his  depu- 
ties there  on  that  day  ;  and,  if  so,  state  what  they  did  as  far  as  under  your  observa- 
tion ? — A.  I  saw  Mr.  Winges  and  his  deputies  there  keeping  peace  and  everything 
quiet. 

Q.  Did  they  have  Winchester  rifles  or  any  other  arms? — A.  If  they  did  I  did  not 
see  it.  and  I  was  there  all  day  long. 

Q.  So,  then,  if  there  had  been  any  intimidation  of  voters  by  these  officers  on  that 
occasion  you  would  have  certainly  known  it? — A.  Yes ;  I  would. 

Q.  State,  if  you  know,  whether  it  was  not  the  understanding  among  the  electors 
that  on  account  of  the  prevalence  of  yellow  fever  in  precinct  No.  7  they  were  expected 
and  required  to  go  to  the  polls  singly,  deposit  the  ballot,  and  retire  without  inter- 
mingling more  than  possible? — A.  They  were. 

Q.  Did  you  see  the  sheriff  ami  his  deputies  make  an  effort  to  keep  the  people  from 
massing  together  in  crowds  at  any  one  point,  and  did  these  officers  state. why  they 
did  so?— A.  They  did.  Mr.  Winges  and  his  office's  stated  why  they  were  at  the 
gate,  and  told  them  it  was  on  account  of  yellow  fever,  and  they  must  not  assemble 
too  much  together ;  that  they  could  not  all  vote  at  once. 


608  GOODRICH   VS.   BULLOCK. 

It  is  claimed  by  the  majority  in  their  report  that  in — 

District  Ko.  20,  forty-nine  duly  qualified  electors  tendered  their  votes 
for  contestant  and  were  refused. 

District  No.  10,  thirty  three  qualified  electors  tendered  their  votes  for 
contestant  and  were  refused. 

District  No.  6,  fifty  qualified  electors  tendered  their  votes  for  con- 
testant and  were  refused. 

District  No.  2,  forty-six  qualified  electors  tendered  their  votes  for 
contestant  and  were  refused. 

District  No.  16,  six  legal  voters  tendered  ballots  for  contestant  and 
were  refused. 

District  No.  11,  ninety  qualified  electors  tendered  their  ballots  for 
contestant  and  were  refused. 

District  No.  3,  ten  legally  qualified  voters  tendered  their  ballots  for 
contestant  and  were  rejected. 

District  No.  19,  seventeen  qualified  voters  tendered  ballots  for  con- 
testant and  were  refused. 

District  No.  1  (Waldo),  twenty-three  qualified  voters  tendered  their 
votes  for  contestant  and  were  refused. 

District  No.  15,  fifty  qualified  electors  tendered  their  votes  for  con- 
testant and  were  refused. 

Without  undertaking  to  make  here  a  critical  examination  of  the  tes- 
timony relating  to  the  several  claims  hereinbefore  mentioned,  we  deem 
it  sufficient  to  say  that  we  can  not  concur  with  the  majority  in  holding 
that  the  proof  of  the  qualification  of  the  voters  referred  to  is  satisfac- 
tory, and  that  their  votes  should  be  counted  as  if  cast.  The  testimony 
shows  that  as  a  general  rule  the  witnesses  did  not  know  the  sections, 
township,  and  range  included  in  said  districts  so  as  to  enable  them  to 
state  positively  that  the  persons  claiming  to  be  voters  were  legally 
qualified  to  vote  in  said  districts;  it  shows  in  many  instances  that  the 
persons  claiming  to  be  voters  had  not  applied  to  the  supervisor  of  reg- 
istration as  the  law  requires  to  have  their  names  placed  upon  the  reg- 
istration lists;  it  shows  that  the  supervisor  of  registration  was  inter- 
rupted in  the  discharge  of  his  duties  by  the  prevalence  of  the  yellow 
fever,  and  that  the  board  of  county  commissioners  were  prevented 
from  meeting  at  the  time  and  place  designated  by  the  same  cause;  it 
shows  that  in  many  instances  the  persons  referred  to  failed  to  do  what 
they  were  required  to  do  in  order  to  register,  or  to  have  their  names 
restored  to  the  registration  lists  if  they  had  been  improperly  stricken 
off. 

We  submit  that  the  burden  of  proof  is  upon  the  contestant,  and  that 
the  testimony  adduced  by  him  is  not  sufficient  to  impeach  the  oflScial 
conduct  of  sworn  officers,  charged  with  the  duty  of  ascertaining  and 
declaring  the  result  of  the  election  in  this  county. 

When  it  is  remembered  that  in  the  county  of  Alachua  at  the  Con- 
gressional election  held  in  1886  the  Democratic  candidate  received  1,900 
votes,  and  the  Eepublican  candidate  received  1,742  votes,  and  when  we 
take  into  consideration  the  complete  disorganization  of  the  Republican 
party  in  that  county  in  the  contest  of  1888,  it  can  not  be  a  matter  of 
surprise  that  the  county  gave  a  Democratic  majority  for  the  contestee. 
Indeed,  no  other  result  could  have  reasonably  been  anticipated. 

It  appears  from  the  record  that  there  was  an  open  rupture  in  the 
ranks  of  the  Republican  party,  and,  as  a  natural  result,  many  colored 
Republicans  voted  the  Democratic  ticket  and  contributed  largely  to  the 
increase  of  the  Democratic  vote.  The  testimony  shows  that  two  colored 
Republicans,  who  were  men  of  character  and  extensive  influence  in  the 


GOODRICH   VS.   BULLOCK.  609 

county  and  had  been  fairly  nominated  by  the  regular  Republican  con- 
vention, were  unceremoniously  stricken  from  the  Keimblican  county 
committee  because  they  were  colored  men,  and  that  J.  T.  Watts,  a 
prominent  colored  man,  who  formerly  represented  the  district  in  Con- 
gress, was  summarily  removed  by  the  same  committee  as  county  chair- 
man. To  show  the  state  of  feeling  existing  among  Republicans  in  that 
county  we  present  the  following  testimony : 

HENRY  C.  DENTON,  a  witness  for  contestee,  being  duly  sworn,  deposes  as  follows : 

Qaestion.  State  vour  name  and  residence. — Answer.  Henry  C.  Denton;  Gainsville, 
Fla. 

Q.  Was  you  present  at  the  polls  at  precinct  No.  7  at  any  time  during  the  day  on 
the  day  of  the  last  general  election  ? — A.  I  was;, in  the  afternoon. 

Q.  Did  you  see  any  colored  men  on  that  day  and  at  that  place  distributing  Demo- 
cratic tickets  and  otherwise  electioneering  for  the  success  of  the  Democratic  party  ? — • 
A.  I  can't  say  that  I  did,  as  I  was  there  only  a  short  while.  1  went  there  to  vote 
and  drove  back  to  Arredouda,  and  did  not  have  time  to  see  how  things  were  going. 

Q.  Were  you  present  at  the  election  at  Arredouda?  And,  if  so,  state  whether  you 
saw  any  colored  men  there  working  in  the  interest  of  the  Democratic  party. — A.  I 
was  present  there  on  election  day  and  saw  a  good  many  colored  men  working  in  the 
interest  of  the  Democratic  party.  I  distributed  tickets  at  both  Gainesville  and  Arre- 
douda. There  were  a  good  many  colored  men  at  Gainesville  who  promised  me  to  vote 
the  Democratic  ticket,  and  waited  until  I  came  up  and  distributed  tickets  before 
they  voted.  I  saw  several  colored  men  vote  the  Democratic  ticket  at  Arredouda,  but 
did  not  at  Gainesville,  as  I  came  up  in  a  borrowed  vehicle  and  could  not  remain  long. 

Q.  You  say  that  you  distributed  Democratic  tickets  to  the  colored  voters  at  Gaines- 
ville box,  aufi  that  these  electors  waited  until  you  came  in  the  afternoon  in  order  to 
obtain  their  tickets  from  you.  Did  they  say  to  you  that  they  intended  to  vote  the 
Democratic  ticket,  and  did  they  ask  you  for  that  kind  of  a  ballot  ?— A.  They  did. 

Q.  You  say  that  you  distributed  Democratic  tickets  at  the  Arredouda  box.  Was 
this  near  the  polls,  and  did  you  see  any  colored  voters  who  obtained  their  tickets  from 
you  go  immediately  to  the  polls  with  their  folded  ballot  ? — A.  I  did  distribute  tickets 
at  the  Arredonda  box ;  was  right  at  the  polls  and  saw  them  put  them  in.  Collison 
and  Martin,  Republican  distributors  of  tickets,  were  some  distance  off  in  the  woods 
distributing  tickets,  and  we  changed  quite  a  number  of  them. 

Q.  You  have  heretofore  resided  at  Arredonda  and  was  temporarily  living  there 
during  the  prevalence  of  yellow  fever  in  Gainesville.  State  whether  or  not  there  was 
great  dissatisfaction  among  the  colored  Republicans  there  growing  out  of  the  action 
of  the  county  Republican  executive  committees  removing  two  colored  county  nom- 
inees and  Hubstituting  in  their  place  two  white  Republicans.  State  fully  what  result 
this  action  had  upon  the  colored  Republican  voters  in  that  precinct. — A.  I  resided  in 
Arredonda  from  1875  to  1881,  and  was  temporarily  living  there  when  the  election 
took  place.  The  action  of  the  county  Republican  executive  committee  in  removing 
two  colored  nominees  and  substituting  two  white  Republicans  caused  great  dissatis- 
faction among  the  colored  voters  at  that  precinct. 

Q.  Was  or  was  it  not  common  talk  among  the  colored  Republicans  at  Arredonda 
before  and  on  election  day  that  they  would  pay  off  the  Republican  party  for  ignor- 
ing their  race  at  the  polls  ? — A,  Yes. 

Q.  Is  it  not  a  fact  that  the  action  of  the  Republican  county  executive  committee 
caused  many  colored  voters  to  vote  the  Democratic  ticket  at  the  last  election  at  that 
precinct  ? — A.  That  is  a  fact  that  can  not  be  denied. 

Q.  Did  not  kicking  of  Gen.  J.  T.  Walls  out  of  the  chairmanship  of  the  Republican 
county  executive  committee  also  add  to  their  dissatisfaction  aud  determination  for 
revenge  upon  their  white  Republican  friends  ? — A.  lb  certainly  did. 

Q.  Is  it  not  within  your  knowledge  by  experience,  as  well  as  observation,  that  col- 
ored men  who  voted  the  Democratic  ticket  at  former  as  well  as  at  the  last  election, 
who  are  so  desirous  of  concealing  the  fact  by  fear  of  some  of  their  own  race  that  they 
would  bitterly  deny  it,  and  some  even  to  the  extent  of  denying  it  under  oath  ?— A.  I 
have  known  many  instances  of  that  kind.  I  mean  to  convey  the  idea  that  they  voted 
the  Democratic  ticket  and  deny  it,  but  so  far  as  denying  it  under  oath  I  could  not  say. 

Q.  You  say  you  were  distributing  Democratic  tickets  at  Arredonda.  Did  yon  give 
any  colored  men  tickets  to  distribute,  and  do  you  know  whether  Ihey  distributed 
them  or  not  ? — A.  I  did  distribute  tickets  to  colored  voters  at  Arredonda,  and  know 
of  several  colored  men  who  were  distributing  them  aleo. 

JOSIAH  T.  WALLS,  being  duly  sworn  as  a  witness  for  contestee,  deposes  as  fol- 
lows : 

Qnestiou.   What  is  your  name ;   in  what  election  district  in  Alachua  County, 
H.  Mis.  137 39 


610  GOODRICH   VS.   BULLOCK. 

Florida,  did  you  reside  and  vote  at  the  election  held  November  6,  IS'^S  ? — A.  Josiah 
T.  Walls ;  1  voted  at  Arreflouda  Precinct  No.  12.  and  reside  there, 

Q.  How  loug  have  you  I'eeu  a  resident  and  voterof  No.  12  district  ? — A.  Since  1877. 

Q.  Were  you  present  at  or  near  the  polls  on  November  6,  l6tiS,  at  ArredondaNo.  12; 
if  BO,  how  longT — A.  I  was;  from  about  7  a.  m.  to  10  p.  m. 

Q.  What  official  position  in  the  Republican  party  did  you  hold  in  this  State  on  that 
day  / — A.  I  was  a  member  of  the  State  central  committee. 

Q.  Were  yon  or  not  a  delegate  to  the  county  Republican  convention  that  met  in 
Gaine8ville,'Alachna  County,  Florida,  to  put  a  county  ticket  in  the  field,  and  did  you 
take  part  in  said  convention,  and  did  said  convention  nominate  and  put  a  ticket  iu  the 
field  or  not  ? — A    1  was,  and  they  did  put  a  ticket  in  the  field. 

Q.  Did  said  convention  make  an  executive  committee  for  the  county ;  and,  if  so, 
vrho  was  the  chairman  of  said  committee? — A.  It  did,  and  I  was  elected  chairmaa  of 
the  committee. 

Q.  Did  you  as  chairman  call  the  committee  together  the  next  day  T — A.  I  did  not 
call  the  committee  together;  the  convention  passed  an  order  for  committee  to  meet, 
and  I  was  elected  chairman  at  that  time. 

Q.  Were  you  present  at  the  meeting  of  the  committee  held  in  pursuance  of  the  reso- 
lution passed  by  the  convention? — A.  I  was. 

Q.  W  hat  was  the  object  for  which  said  committee  was  called  together  ? — A.  It  was 
ordered  by  the  convention  that  the  committee  meet  the  next  morning  at  9  o'clock  and 
organize  by  electing  a  chairman  and  secretary ;~  that  was  all  the  resolution  embodied. 

Q.  What,  if  anything  else,  was  done  by  said  comipittee  when  it  met  and  organized 
the  day  after  the  convention  adjourned  T — A.  After  the  committee  had  organized  Mr. 
Barnes,  J.  E.  Webster,  and  Mr.  Callison  appeared  before  the  committee  and  stated 
that  they  declined  to  rnn  as  candidates  on  the  county  ticket  if  Mr.  Lewey  and  Mr. 
Sebastion,  two  colored  men,  remained  on  the  ticket. 

Q.  Did  the  committee  take  any  action  that  you  thought  they  were  empowered  to 
do  under  any  resolution,  call,  or  authority,  or  precedent  at  said  meeting! — A.  They 
did  not. 

Q.  Were  Lewey  and  Sebastion,  the  two  colored  candidates  nominated  by  the  con- 
vention, displaced  from  said  ticket  at  said  meeting  of  the  committee  t — ^^A.  They  were. 

Q.  Was  there  not. protest  made  by  you  and  others  in  said  committee  meeting  against 
said  action,  and  did  yon  and  others  point  out  that  the  drawing  of  the  color  line  by 
Barnes,  Webster,  and  Callison  would  lead  to  a  rupture  and  the  disintegration  of  the 
Republican  party  in  this  county? — A.  We  did. 

Q.  Were  you  not  called  away  a  few  days  afterward  to  goon  the  State  canvass  with 
the  Republican  candidate  for  governor,  V.  J.  Shipman  ?     A.  I  was. 

Q.  Upon  your  return  from  the  canvass  were  you  not  taken  sick  with  what  was  at 
that  time  reported  yellow  fever,  and  ujtou  your  recovery  did  you  or  not  address  a  letter 
to  Webster  and  Barnes  in  relation  to  the  removal  of  Lewey  and  Sebastion  from  the 
county  ticket,  and  was  it  an  open  letter  or  not? — A.  I  was  taken  sick,  as  stated, 
and  on  my  recovery  did  address  a  letter  to  Webster  and  Barnes  in  reference  to  the  re- 
moval of  Lewey  and  Sebastion  ;  the  letter  was  dated  September  22,  18Hb. 

Q.  As  a  result,  then,  there  were  two  Republican  county  tickets  in  the  field  on  the 
day  •  f  the  election  ? — A.  There  was. 

Q  Did  not  the  action  of  Barnes,  Webster,  and  Callison  engender  a  very  bitter  feel- 
ing among  the  white  and  colored  Repulilicans,  and  did  not  a  considerable  number  of 
the  colored  people,  including  many  of  the  old  leaders  in  the  party  in. the  ditJerent 
precincts,  regard  it  as  an  insult  to  their  rights  and  their  intelligence  to  be  told  by 
■white  men  that  to  be  a  colored  man  was  a  disqualification  to  be  a  candidate  on  the 
Republic  an  ticket  for  a  county  office  ? — A.  It  »lid  create  considerable  feeling  ;  the  peo- 
ple resented  it  by  their  votes,  and  it  certainly  changed  the  result  of  the  election  in 
this  county,  and  there  were  not  less  than  700  colored  voters  in  Alachua  Coiiuty  who 
voted  the  Democratic  ticket  for  county  officers. 

Q.  From  your  knowledge  of  the  politics  of  this  county  are  you  able  to  say  that  this 
bitter  feeling  between  the  white  and  colored  Republicans  did  affect  the  entire  Re- 
publican ticket  throughout  the  couuty? — A.  It  affected  it  to  some  extent. 

Q.  Was  not  there  more  interest  displayed  and  taken  by  the  colored  people  at  the 
last  election  in  district  No.  12  in  the  election  of  the  Democratic  county  ticket  and  the 
defeat  of  Webster  and  Barnes  than  there  was  about  any  other  part  of  the  ticket  t — A. 
There  was. 

Q.  Were  yon  in  Arredonda  the  night  preceding  the  election,  and  did  you  see  Mr. 
L.  A.  Barnes,  the  chairman  of  Republican  State  campaign  committee,  and  also  of 
the  county  campaign  committee,  and  candidate  for  clerk  of  the  court,  and  did  he 
have  any  conversation  with  you  ai  others ;  if  so,  state  a^  near  as  you  can  what  that 
conversation  was? — A.  Yes;  I  was  at  Arredonda,  at  Chesnut  &  Stringlellow's  store ; 
I  met  Mr.  Barnes  there,  and  the  lollowing  conversat  ou  tookjdice:  Herequested  me 
to  support  him  for  clerk  of  the  court ;  that  he  had  always  been  my  friend;  that  he 
did  not  car*  anything  about  the  rest  of  the  ticket ;  and  whather  hu  was  elected  or  Uot 


GOODRICH   VS.    BULLOCK.  611 

he  wanted  Henry  Denton  elected  as  tax  collector,  and  lie  seemed  to  be  excited,  and 
says:  "  In  short,  I  do  not  care  a  damn  just  so  Bill  Sheats  was  defeated  as  superin- 
tendent of  schools." 

Q.  Was  Henry  Deutou  the  candidate  on  the  Democratic  ticket  for  tax  collector  at 
the  last  electiou  or  not? — A.  Yes. 

Q.  From  th  •  best  of  your  information,  knowledge,  and  belief  did  not  a  larger  num- 
ber of  colored  people  vote  the  Democratic  ticket  at  the  last  election  than  at  any  elec- 
tion prior  thereto?  Was  not  that  defection  caused,  in  your  opinion,  by  the  drawing 
of  the  color  lino  for  candidates  ? — A.  Yes ;  and  it  was  caused  by  drawing  the  color  line. 

VIRGIL  GEORGE,  being  sworn,  says : 

Question.  What  is  your  name,  age,  and  place  of  residence  ? — Answer,  Virgil  George ; 
aged  66  years  of  age  ;  reside  at  Arredonda  Precinct  No.  12. 

Q.  Are  you  a  white  man  or  a  colored  man? — A.  I  am  a  colored  man. 

Q.  Where  were  you  and  what  were  you  doing  on  the  6th  day  of  last  November,  1  88, 
the  day  of  the  last  general  election  ? — A.  I  was  m  Arredonda  Preeinct,  No.  12,  Alachua 
County,  Florida,  and  one  of  the  managers  of  the  election  in  precinct  No.  12. 

Q.  Were  you  a  Republican  or  Democrat  manager  of  the  election  ? — A.  I  was  a  Re- 
publican manager. 

Q.  Were  you  in  the  room  where  the  ballot-box  was  kept  where  the  election  Avas 
carried  on  during  that  day  and  all  of  the  time  up  to  the  end  of  the  counting  of  the 
ballots?— A.  I  was. 

Q.  Did  you  and  the  other  inspectors  keep  the  ballot-box  on  the  table  by  the  win- 
dow in  full  view  of  the  public? — A.  Yes;  we  did. 

Q.  Did  you  keep  the  ballot-box  by  the  window  and  keep  the  window  open  all  dur- 
ing the  day  and  up  to  the  time  the  counting  was  commenced  ? — A.  Yes;  we  did. 

Q.  As  an  inspector  will  you  swearthat  you,  together  with  other  inspectors,  counted 
the  ballots  as  cast  in  that  ballot-box,  and  returned  them  as  they  were  counted  ;  and 
is  it  not  a  fa3t  that  you  can  read  and  write  and  kept  a  tally-sheet  of  the  counting  ? — 
A.  Yes ;  that  is  a  fact. 

Q.  Is  it  not  a  fact  that  the  ballot-box  remained  on  the  table  with  the  window  open 
after  the  polls  had  closed  till  a  light  was  obtained  to  commence  the  counting  ? — A.  It 
is  a  fact. 

Q.  Were  there  any  colored  and  white  people  standing  outside  watching  the  box  all 
this  time  to  see  that  everything  was  kept  straight? — A.  There  was  during  this  time. 

Q.  Were  they  Republicans  or  Democrats  or  both? — A.  Both  Democrats  and  Re- 
publicans. 

Q.  Did  you  or  any  of  the  other  inspectors  allow  any  person  to  come  inside  the  room 
where  the  ballot-box  was  during  the  day  and  up  to  the  time  you  commenced  count- 
ing the  ballots  or  not?    A.  We  did  not. 

Q.  You  say  you  staid  in  the  room  all  day  and  up  to  the  time  the  ballots  were 
counted  ;  were  you  very  careful  to  keep  your  eyes  on  the  ballot-box  and  watch  it  all 
during  the  day  and  up  to  the  time  the  count  was  commenced,  so  as  to  perform  your 
full  duty  as  an  inspector? — A.  Yes,  sir;  I  did. 

Q.  Are  you  willing  to  swear,  as  an  inspector,  that  there  was  no  tampering  with  the 
ballot-box  done,  and  that  the  votes  were  counted  as  cast? — A.  Yes,  I  am. 

Q.  It  has  been  charged,  and  attempted  to  be  proved,  by  the  contestant,  that  you 
were  in  a  state  of  intoxication  that  day  and  disqualified  as  an  inspector  to  discharge 
your  duty.  Is  this  charge  true  or  false? — A.  It  is  false;  I  neither  tasted  or  smelled 
or  saw  a  drop  of  liquor  that  day,  and  I  discharged  my  duty  as  an  inspector  to  the 
best  of  my  ability,  so  help  me  God. 

Q.  Then  the  charge  that  you  were  intoxicated  with  liquor  on  that  day,  while  yon 
were  acting  as  inspector,  is  absolutely  false  and  without  foundation,  is  it? — A.  It  is 
false. 

Q.  How  long  have  you  been  a  member  of  the  Republican  party  in  this  county;  and 
have  yon  always  voted  the  straight  Republican  ticket  up  to  the  time  of  the  last  elec- 
tion?—A.  24  years;  always  voted  the  straight  Republican  ticket  until  the  last  elec- 
tiou. 

AMOS  GEORGE,  a  witness  for  contestee,  being  sworn,  deposes  as  follows: 

•Question.  State  your  rfame,  place  of  residence,  and  color. — Answer.  Amos  George; 
live  at  Arredonda  precinct,  Alachua  County,  District  No.  12;  black  man. 

Q.  Where  were  you  on  the  6th  day  of  November  last,  and  what  were  you  doing  on 
said  day,  the  same  being  general  election  ? — A.  I  was  at  Arredonda  trying  to  cast  my 
vote. 

Q.  Were  you  engaged  in  distributing  tickets  on  that  day  at  that  precinct;  and,  if 
so,  what  sort  of  lickets? — A.  I  distributed  a  good  deal  of  tickets  among  ray  friends, 
who  said  they  were  going  to  vote  them. 

Q.  W^ere  the  tickets  you  distributed  among  your  friends  Republican  or  Democratic 
tickets? — A.  They  said  they  were  Democratic  tickets.     I  am  a  Democrat  myself. 

Q.  Did  thoa«  peraona  to  whom  you  distributed  these  Democratic  tickets'  tell  you 


612  GOODRICH   VS.    BULLOCK. 

that  they  intended  to  vote  the  same  ? — A.  Yes,  sir ;  all  of  them  said  they  were  going 
to  vote  same  ticket  I  did. 

Q.  Were  these  per  ens  to  whom  you  distributed  tickets  white  or  black  persons? — 
A.  They  were  all  colored,  like  myself. 

Q.  Do  you  know  of  any  other  colored  man  who  was  distributing  Democratic  tickets 
that  day  at  Arredouda? — A.  I  do  not  know  positively  of  any  colored  man  distribut- 
ing Democratic  tickets  that  day.  A  heap  of  them  used  Deoiocratic  tickets  that  day, 
but  would  not  own  to  it. 

Q.  Do  you  mean  to  say  that  a  good  many  colored  men  at  Arredonda  that  day  voted 
the  Democratic  ticket,  but  do  not  now  own  to  the  same? — A.  Yes,  sir;  lots  of  them 
there  voted  the  Democratic  ticket,  but  are  ashamed  to  own  it  now. 

Q.  Did  you  hear  any  of  these  colored  persons  at  Arredonda  that  day  say  that  they 
had  voted  the  Democratic  ticket  ? — A.  Yes,  sir  ;  I  heard  lots  of  them  say  it. 

Q,  Do  they  now  deny  it  because  they  are  afraid  of  the  colored  Republican  lead- 
ers?— A.  Yes;  the  colored  people  are  afraid  of  one  another,  and  go  and  vote  tbe 
Democratic  ticket,  and  now  they  don't  own  it ;  I  voted  the  Democratic  ticket  and 
they  did  it. 

Q.  Were  these  tickets  you  distributed  the  straight  Democratic  ticket,  containing 
the  names  of  all  the  Democratic  nominees? -A.  They  told  me  they  were  straight 
Democratic  tickets;  I  told  them  I  wanted  nothing  but  straight  Democratic  tickets. 

So  far  as  Alachua  County  is  concerned,  we  submit  in  view  of  all  the 
testimony  that  the  oflBcial  returns  have  not  been  successfully  assailed, 
and  that  the  vote  should  be  counted  as  returned. 

HAMILTON   COUNTY. 

We  concur  with  the  majority  in  holding  that  the  13  votes  in  district 
No.  3,  duly  tendered  for  contestant  and  rejected  upon  the  ground  that 
the  voters  had  changed  their  residences  from  one  place  to  another  in 
the  same  precinct,  should  be  counted  for  him.  While  section  8  of  the 
act  of  June  7,  1887,  may  possibly  admit  of  a  different  construction,  we 
are  inclined  to  the  opinion  that  a  mere  change  of  residence  from  one 
house  to  another  in  the  same  voting  precinct  should  not  deprive  an 
elector  of  his  right  to  vote.  We  also  concur  with  the  majority  in  hold- 
ing that  the  104  votes  cast  for  contestant  and  the  2  votes  cast  for  con- 
testee  in  district  No.  2,  which  were  thrown  out  because  there  was  a 
printer's  dash  under  the  names  of  some  of  the  candidates  on  the  tickets, 
should  be  counted.  We  do  not  believe  that  this  was  such  a  distin- 
guishing mark  as  justified  the  rejection  of  these  ballots. 

The  same  remark  may  be  made  as  to  the  48  votes  claimed  for  con- 
testant in  district  No.  7.  We  also  agree  with  the  majority  in  holding 
that  18  additional  votes  should  be  counted  for  contestant  in  district 
No.  5;  but  we  do  not  think  that  the  18  additional  votes  claimed  in 
district  No.  3  should  be  allowed  to  the  contestant.  It  will  be  noticed 
that  the  witness  relied  upon  to  establish  this  claim  does  not  pretend  to 
know  that  the  persons  referred  to  were  legally  qualified  voters  under 
the  laws  of  Florida. 

As  to  the  result  of  our  examination,  we  have  come  to  the  conclusion 
that  183  additional  votes  should  be  counted  for  the  contestant  in  this 
county,  and  2  additional  votes  for  the  contestee. 

DUVAL  COUNTY. 

We  concur  with  the  majority  in  the  opinion  that  the  13  ballots  for 
contestant  in  district  No.  8  and  the  1  ballot  for  contestee,  which  were 
rejected  on  the  claim  that  they  had  specks  on  them,  should  be  counted. 
We  also  think  that  the  9  ballots  for  contestant  in  district  No.  21,  which 
were  thrown  out  on  the  ground  that  there  was  a  printer's  dash  on  them, 
should  be  counted ;  but  we  think  that  the  45  votes  for  contestant  in 
district  No.  fi  were  properly  rejected,  because  the  name  of  one  of  the 


GOODRICH    VS.    BULLOCK.  613 

candidates  on  the  ticket  was  written  with  a  red  lead  pencil.  We  also 
agree  that  the  12  additional  votes  claimed  for  contestant  in  district  No. 
12  should  be  counted.  We  do  not  agree  to  the  claim  made  for  contest- 
ant of  12  additional  votes  in  district  No.  8,  8  additional  votes  in  dis- 
trict No.  21,  1  additional  vote  in  district  No.  23,  29  additional  votes  in 
district  No.  17, 3  additional  votes  in  district  No.  18, 39  additional  votes 
in  district  No.  20,  3  additional  votes  in  district  No;  G,  26  additional 
votes  in  district  No.  15,  3  additional  votes  in  district  No.  7,  75  addi- 
tional votes  in  district  No.  16,  28  additional  votes  in  district  No.  19,  62 
additional  votes  in  district  No.  22,  and  18  additional  votes  in  district 
No.  13. 

An  examination  of  the  testimony  relied  upon  to  establish  these  sev- 
eral claims  will  show,  we  think,  that  it  is  legally  insufficient  for  the 
purpose  intended.  It  is  not  the  best  evidence  which  could  have  been 
produced.  The  persons  themselves  should  have  been  called  and  re- 
quired to  testify.  Such  hearsay  evidence  as  is  relied  upon  is  not  admis- 
sible; but  if  it  should  be  accepted,  it  proves  that  the  votes  of  nearly 
all  the  persons  referred  to  were  rejected  because  they  failed  to  produce 
the  certificate  of  registration  required. 

As  the  result  of  our  investigation,  we  credit  contestant  with  34  addi- 
tional votes  in  this  county  and  the  contestee  with  1. 

DADE  COUNTY. 

There  was  no  charge  of  fraud  in  this  county,  and  it  appears  that  the 
vote  returned  was  about  the  usual  vote  as  cast  in  preceding  elections. 
We  concur  with  the  majority  that  the  vote  as  returned  from  this  county 
should  be  counted. 

COLUMBIA  COUNTY. 

We  concur  with  the  majority  that  127  additional  votes  should  be 
counted  for  the  contestant  in  this  county. 

PUTNAM  COUNTY. 

We  concur  with  the  majority  in  the  opinion  that  15  additional  votes 
should  be  counted  for  contestant  in  this  county. 

VOLUSIA  COUNTY. 

As  to  the  31  votes  claimed  in  this  county  for  contestant,  it  appears 
from  the  testimony  that  they  were  rejected  by  the  inspectors  because 
the  names  of  the  persons  offering  them  were  not  found  on  the  registra- 
tion list,  and  in  the  absence  of  proof  to  the  contrary  there  is  a  legiti- 
mate presumption  that  they  were  properly  rejected.  It  has  been  re- 
peatedly decided  by  the  House  of  Representatives  that  the  acts  of 
proper  officers,  acting  within  the  sphere  of  their  duties,  must  be  pre- 
sumed to  be  correct,  unless  shown  to  be  otherwise. 

ORANGE   COUNTY. 

We  concur  with  the  majority  of  the  committee  in  the  opinion  that  31 
additional  votes  should  be  counted  for  contestant  in  this  county,  but 
we  do  not  think  that  the  9  votes  claimed  should  be  allowed,  because  it 
appears  that  the  names  of  eight  of  the  persons  referred  to  had  been 
stricken  from  the  registration  list,  and  that  the  other  one  had  been  con- 
victed of  larceny. 


614  GOODRICH   VS.    BULLOCK. 

flLlEION   COUNTY. 

We  differ  from  the  majority  in  holding  that  the  83  ballots  for  con- 
testant at  Faiitville  precinct,  thrown  out  because  certain  names  were 
written  in  red  ink,  should  be  counted.  It  appears  from  the  testimony 
that  the  inspectors  were  unanimous  in  the  rejection  of  those  ballots; 
that  it  was  not  known  at  the  time  of  their  rejection  whether  they  had 
on  them  the  names  of  the  Democratic  or  Eepublican  candidates,  and 
they  were  rejected  solely  for  the  reason  that  they  were  written  in  red 
ink.    Section  23  of  the  Florida  election  laws  of  1887  provides  as  follows- 

The  voting  shall  be  by  ballot,  which  ballot  shall  be  plain  white  paper,  clear  and 
even  cut,  -without  ornauients,  designation,  mutilation,  symbol,  or  mark  of  any  kmd 
whatever,  ■except  the  name  or  names  ot  the  person  or  persons  voted  for  and  theoflB«e 
to  which  such  person  or  persons  are  intended  to  be  chosen,  which  name  or  names  and 
office  or  officers  shall  be  written  or  printed,  or  partly  written  and  partly  printed, 
thereon  in  black  ink  or  with  black  pencil,  and  such  ballot  shall  be  so  folded  as  to 
conceal  the  name  or  names  thereon,  and  so  folded  shall  be  deposited  in  a  box  to  be 
constructed,  kept,  and  disposed  of  as  hereinafter  provided,  and  no  ballot  of  aiuj  other 
description  found  in  any  election  box  shall  be  counted. 

We  do  not  concur  with  the  majority  in  the  opinion  that,  in  addition 
to  the  83  votes  referred  to,  466  votes  should  be  counted  lor  the  contest- 
ant in  this  county.  A  careful  examination  of  the  testimony  relied  upon 
can  not  lail  to  impress  the  impartial  reader  with  the  idea  that  mauy  of 
the  witnesses  did  not  know  what  they  were  testifying  about.  As  an 
illustration,  we  furnish  from  numerous  examples  the  following: 

Elias  Jackson  testifies,  p.  856,  as  follows : 

Q.  What  is  Congress  f — A.  Mr.  Williams  told  me  to  vote  for  the  Pugrakin  nominee. 
Q.  Is  Congress  a  man  or  a  woman? — A.  I  think  it  is  a  woman,  a  black  woman. 

Henry  White,  p.  842,  testifies  as  follows: 

Q.  Who  was  the  Republican  nominee  for  Congress  in  the  Second  Congressional  dis- 
trict of  Florida  at  the  election  held  November  6,  1888,  and  who  was  the  Democratic 
nominee  ? — A.  Bob  Ingersoll,  Republican,  and  John  Sherman  was  the  Democratic 
nominee. 

As  to  the  suggestion  of  the  majority  that  E.  M.  Gregg,  supervisor  of 
registration,  was  actuated  by  a  deliberate  and  wicked  purpose  to  de- 
prive Eepublican  voters  of  their  rights,  we  submit  that  it  is  not  sus- 
tained by  the  evidence.  To  sustain  this  charge  the  testimony  of  one 
Jesse  Reddick  has  been  offered.  An  examination  of  his  testimony 
will  show  that  it  bears  upon  its  face  internal  evidence  of  falsehood,  and 
that  it  can  not  be  accepted  as  true.  As  further  proof  that  the  statement 
of  the  said  Reddick  is  utterly  unworthy  of  credit,  we  call  attention  to 
the  affidavits  which  have  been  furnished  and  filed  with  the  committee, 
and  appended  to  this  report. 

As  to  the  "  side  boxes"  referred  to  in  the  testimony  of  Monroe,  Tid- 
well,  and  Robinson,  we  submit  that  they  were  used  without  any  au- 
thority of  law,  and  that  the  so  called  returns  made  from  them  are 
entirely  worthless  for  the  purpose  of  setting  aside  the  official  returns 
made  from  the  ballot-boxes  i)rovided  by  law  and  by  the  sworn  officers 
of  the  election.  We  call  attention  to  the  testimony  of  E.  M.  Gregg, 
supervisor'  of  registration,  as  a  complete  refutation  of  the  charges  pre- 
ferred against  him,  and  as  showing  that  he  made  no  discrimination 
whatever  between  Republicans  and  Democrats  in  the  discharge  of  his 
official  duties 

To  sustain  the  testimony  of  Mr. -Gregg  upon  the  issue  referred  to  we 
present  the  following: 

July  Brown,  colored,  p.  976,  testifies  that  he  acted  on  the  police  force  in  the  city 
of  Ocala  five  years,  and  also  as  deputy  sheriff  at  different  times  during  the  past  seven 


GOODRICH   VS.    BULLOCK.  6l5 

rears ;  that  he  is  personally  acquainted  with  the  colored  men  whose  names  are  enum- 
erated ;  that  he  knows  said  persons  changed  their  places  of  residence  betw-  en  Sep- 
tember 3,  lb87,  and  November  6,  18ti8,  aad  that  he  notified  the  registration  officer  of 
said  change  of  residence. 

J.  D.  Williams,  deputy  sheriff,  testifies,  p.  977,  that  he  was  well  acquainted  with 
the  persons  whi)se  names  are  giv*n;  tuat  they  changed  their  residences  within  the 
Ocala  precinct  between  the  :M  day  of  September,  lHft7,  and  6th  day  of  November, 
lb88,  and  that  he  so  notified  E.  M.  Gregg,  the  registration  officer. 

E.  L.  Ferguson  testifies,  p.  979,  that  the  persons  whose  names  are  given  changed 
their  places  ot  residence  Irom  one  point  to  another  in  tiie  same  district,  or  from  one 
district  to  another,  between  the  3d  day  of  September,  1^87,  and  the  6th  day  ot  Novem- 
ber, lc8d,  and  that  he  so  notified  the  supervisor  of  registration. 

So  far  as  this  county  is  concerned,  we  snbmit  that  the  contestee  has 
more  cause  of  complaint  than  the  contestant.  The  testimony  shows 
that  at  Ocala  precinct  the  friends  and  supi)orters  of  the  contestant 
adopted  the  most  unwarrantable  methods  to  prevent  the  free  exercise 
of  their  rights  and  privileges  by  the  voters.  (See  testimony  of  B.  P. 
Lyons,  p.  96G,  and  J.  T.  Lancaster,  p.  967,  and  E.  S.  Williams,  p.  907.) 

MADISON  COUNTY. 

We  can  not  agree  with  the  majority  of  the  committee  as  to  the  result 
reached  in  this  county.  Without  undertaking  to  make  a  critical  exami- 
nation in  this  report  of  all  ihe  testimony  relating  to  the  county  of  Mad- 
ison, we  a«lopt  as  substantially  correct  the  following  views  of  the  cou- 
testee's  attorney  as  contained  in  his  brief: 

We  propose  to  notice  briefly  his  claim  in,  the  several  districts.  In  the  Cherry  Lake 
district,  No.  7,  he  elaims  one  hundred  and  thirty-one  (131)  votes  upon  the  ground  that 
the  regularly  appointed  officers  of  the  election  were  so  intimidated  that  thev  refused 
to  open  the  pulls,  and  that  under  the  circumstances  the  Republicans  elected  a  board 
of  election  officers,  who  held  an  election  at  a  dili'erent  place  from  that  appointed  by 
law,  at  which  place  one  hundred  and  thiity-one  (131)  votes  were  cast  for  contestant. 

The  testimony  of  M.  H.  Waring,  p.  225,  shows  that  an  election  was  h-ld  about  a 
quarter  of  a  mile  from  the  regular  polling  place  by  inspectors  chosen  by  the  bystanders, 
;ill  of  whom  were  Republicans;  that  said  election  was  not  recognized  by  the  Demo- 
crats as  valid,  and  that  none  but  Republicans  participated  in  it. 

Charles  Hayes  testifies,  p.  236,  that  none  but  Republicans  took  part  in  the  so  called 
election  in  the  Cherry  Lake  precinct,  that  all  of  the  inspectors  were  colored  men,  and 
that  they  had  no  registration  list  showing  who  were  the  legally  qualified  voters. 

J.  F.  Livingston  testifies,  p.  238,  that  some  colored  man,  whose  name  he  does  not 
know,  brouglit  to  him  as  supervisor  of  registration  a  ballot-box  purporting  to  come 
from  Cherry  Lake  precinct,  and  that  he  had  opened  the  ballot  box  to  get  a  book 
from  it. 

The  testimony  of  H.  B.  Coffee,  G.  W.  Barnard,  J.  L.  Edwards,  W.  Townsend,  and 
Richard  Boyd,  taken  by  contestee  and  found  in  the  supidemeutal  record  showing  the 
"Tes  imony  from  Madison  County,''  proves  that  no  election  was  held  at  the  regular 
polling  jdaee  in  Cherry  Lake  piecinct,  that  the  regtilarly  appointed  inspectors  were 
appreheuHive  of  an  attack  at  night  from  the  colored  people,  who  had  collected  and 
deposited  gtius  near  to  the  regul.*r  polling  place,  and  that  the  inspectors,  fearing 
that  their  lives  would  be  endangered,  declined  to  open  the  polls.  Whatever  may  be 
thought  of  the  reasonableness  of  the  apprehension  of  personal  danger,  which  they 
evidently  felt,  and  their  failnre  to  perform  the  duties  required  of  them  by  law,  we 
submit  that  the  vote  claimed  for  the  contestant  at  this  precinct  can  not  properly  be 
counted  for  him.  There  was  no  election  held  in  this  precinct.  The  persons  who  un- 
dertook to  conduct  an  election  had  no  authority  whatever  to  open  i)olls  at  a  place 
difl'erent  from  that  appointed  bj'  law,  and  the  Democratic  voters,  well  knowing  that 
fact,  declined  to  recognize  or  to  participate  at  all  in  the  so-called  election.  The  pro- 
visions of  law  which  fix  the  time  or  place  of  holding  elections  are  to  be  construed  as 
mandatory  and  not  as  merely  directory.  The  reason  for  this  is  obvious.  Every 
voter  is  piesumed  to  know  the  law,  and  to  be  thereby  intoimed  as  to  the  time  when 
and  the  place  where  he  may  deposit  his  ballot;  but  if  that  time  or  place  be  changed 
without  proper  authority  and  due  notice,  no  voter  can  be  held  as  legally  bound  lO 
take  notice  of  tl'e  change.    (See  McCrary  on  American  Law  of  Elections,  sec.  114.) 

As  to  Madison  district  No.  1,  the  te^^imony  shows  that  the  ballot-box  and  ballots 
were  taken  and  carried  away  about  ten  o'clock  at  night,  while  the  inspectors  were 
in  the  act  of  canvassing  the  votes.    No  return  whatever  has  been  made  from  this  dis- 


616  GOODRICH   VS.    BULLOCK. 

trict,  and  yet  the  contestant's  attorney  claims  that  of  the  six  hundred  and  fifteen  (615) 
votes  said  to  have  been  cast  two  hnudred  and  six  (20C)  should  be  counted  lor  contestee 
and  four  hundred  and  nine  (409)  for  contestant.  Tlie  best  evidence  would  of  coarse 
be  that  of  the  voters  themselves,  but  instead  of  producing  that,  an  effort  is  made  to 
show  the  Democratic  vote  by  proving  the  number  of  votes  cast  for  county  commis- 
sioners at  an  informal  election  held  on  the  same  day.  We  submit  that,  according  to 
contestant's  own  testimony,  the  vote  given  for  the  county  commissioners  can  not  be 
accepted  as  a  fair  test  of  the  Democratic  strength  in  that  precinct,  while  the  testi- 
mony of  contestee  shows  that  very  little  interest  was  felt  by  the  Democrats  in  that 
matter,  and  that  a  great  many  of  them  would  not  vote,  because  they  regarded  it  as 
a  farce.  (See  Testimony  of  E.  M.  Witherspoon,  p.  12,  "Testimony  from  Madison 
County;"  also  Testimony  of  James  N.  Adams,  p.  5.) 

There  is  no  legal  evidence  in  the  record  to  show  what  vote  the  contestant  received 
in  Madison  district  No.  1,  and  he  can  not  expect  the  committee  to  guess  at  it  and  to 
assume  that  he  received  four  hundred  and  nine  (409)  votes  because  two  hundred  and 
six  (206)  Democrats  by  an  informal  vote  recommended  to  the  governor  the  appoint- 
ment of  certain  county  commissioners. 

It  is  claimed  by  contestant's  attorney  that  in  Hickstown  district  No.  10  one  hnu- 
dred (100)  votes  should  be  counted  for  contestant  and  thirty  (30)  for  contestee.  It 
appears  from  the  testimony,  pp.  232,  233,  234,  that  there  was  no  registration  list  used 
at  this  precinct,  and  that  after  the  inspectors  had  canvassed  about  thirty  (30)  votes 
they  refused  to  proceed  further,  left  the  polling  place,  and  abandoned  the  ballot-box, 
■which  was  afterwards  carried  to  Mr.  Henderson's  store  by  a  little  negro  boy. 

The  testimony  of  Elza  McCraine,  p.  6,  and  Rufus  E.  Dickinson,  p.  12,  "  Testimony 
from  Madison  County,"  shows  that  the  inspectors  at  this  precinct,  after  the  closing 
oi^the  polls,  were  frightened  off  by  thirty  (30)  armed  negroes,  who  made  a  hostile 
demonstration  in  front  aud  in  rear  of  the  house.  Whatever  may  be  thought  of  the 
conduct  of  the  inspectors  in  thus  abandoning  their  post  of  duty,  this  committee  can 
not  determine  how  many  votes  were  given  for  the  rival  candidates  at  Hickstown  pre- 
cinct No.  10  in  the  absence  of  any  reliable  information  whatever  upon  that  subject. 
The  contestant's  attorney  claims  that  twenty-three  (23)  votes  should  be  added  to 
contestant's  vote  and  a  like  number  deducted  from  contestee's  vote  at  Norton's  Creek 
district  No.  3,  aud  he  relies  upon  the  testimony  of  John  Wilkins,  p.  236.  It  will  be 
seen,  however,  that  while  this  witness  testifies  that  he  distributed  twenty-six  (26) 
ballots  to  Republican  voters,  he  is  not  willing  to  swear  that  they  voted  the  Repub- 
lican tickets. 

The  contestant's  attorney  claims  in  his  brief  that  thirty-six  (36)  votes  shonld  be 
added  to  contestant's  vote  and  a  like  number  deducted  from  contestee's  vote  in  Mace- 
donia district  No.  11.  Instead  of  producing  the  voters  themselves,  whose  evidence 
•would  be  the  best  the  case  admits  of,  it  seems  that  the  contestant  is  content  to  rely 
upon  the  testimony  of  one  Patrick  Warock,  who  testifies,  p.  242,  that  he  distributed 
sixty-five  (65)  ballots  to  persons  claiming  to  be  Republicans,  and  that  he  went  to  the 
polls  with  these  persons  and  saw  them  vote.  Surely  no  argument  is  necessary  to 
prove  that  official  returns  made  by  sworn  officers  of  the  election  can  not  be  changed 
by  such  testimony  as  that  relied  upon  here. 

It  is  claimed  by  contestant's  attorney  that  one  hundred  and  thirty  (130)  votes  were 
cast  for  contestant  and  not  returned  from  Greenville,  district  No.  5,  and  that  nineteen 
(19)  votes  were  illegally  rejected  which  should  be  added  to  contestant's  vote.  The 
testimony,  pp.  244,  245,  250,  251,  shows  that  no  return  of  the  vote  was  made  from  this 
district  or  canvassed  by  the  board  of  county  canvassers.  It  shows  that  the  ballot- 
box  was  entrusted  by  the  officers  of  election  to  one  J.  H.  Redding,  who  was  not  act- 
ing in  any  official  capacity  and  had  no  authority  to  receive  it.  According  to  the 
statement  of  Redding  the  ballot-box  was  forcibly  seized  by  armed  men  and  taken 
from  his  custody.  He  testifies  that  the  aggregate  vote  cast  at  this  precinct  was  about 
two  hundred  and  fiiteen  (215),  and  of  this  number  he  thinks  the  contestant  received 
one  hundred  and  thirty  (130).  In  the  absence  of  the  official  returns,  we  insist  that 
the  voters  themselves  should  have  been  called  to  testify  how  they  voted.  This  would 
undoubtedly  have  been  the  best  evidence,  and  as  it  was  not  produced  the  contestant 
has  failed  to  establish  his  claim. 

In  addition  to  the  one  hundred  and  thirty  (130)  votes  above  referred  to,  it  is 
claimed  upon  the  testimony  of  Thomas  Greenwood,  p.  248,  that  nineteen  Republican 
votes  were  illegally  rejected  at  this  poll.  We  submit  that  the  testimony  relied  upon 
is  not  sufficient  to  establish  the  claim.  On  the  contrary,  it  appears  from  the  state- 
ment of  the  witness  himself  that  the  votes  of  the  nineteen  persons  referred  to  were 
rejected  because  they  had  no  certificates  of  registration,  and  it  does  not  appear  that 
they  had  been  properly  registered.  It  is  claimed  by  contestant's  attorney  in  his  brief 
that  sixty-eight  (68)  votes  should  be  added  to  contestant's  vote,  and  a  like  number 
deducted  from  contestee's  vote  at  Ellaville,  district  No.  2,  upon  the  ground  that 
^wenty-nine  (29)  votes  were  returned  aud  canvassed  for  contestant,  and  that  ninety- 
goven  (97)  votes  were  cast  for  him  at  this  poll.    To  establish  this  claim  he  relies  upon 


GOODRICH   VS.    BULLOCK.  617 

the  testimony  of  J.  H.  Stripling,  p.  249,  1»ut  we  .submit  that  it  is  not  sufficient  for 
that  purpose.  The  witness  testifies  that  he  distributed  ninety-seven  (97)  ballots  to 
Republicans  but  he  admits,  xipon  cross-examination,  that  ho  does  not  know  and  can 
not  swear  that  these  persons  cast  the  identical  ballots  which  he  distributed  to  them. 

In  addition  to  the  official  returns  from  this  precinct  we  rely  upon  the  testimony  of 
William  P.  Denham  and  J.  A.  M.  Brown,  p.  11,  "Testimony  from  Madison  County," 
who  testify  that  the  election  at  this  precinct  was  fairly  and  properly  conducted.  It 
is  claimed  by  contestant's  attorney  in  his  brief  that  two  hundred  and  fifty-nine  (259) 
votes  should  be  added  to  contestant's  vote  at  Hamburg,  district  No.  fi.  The  testimony 
shows  that  the  ballots  were  seized  and  destroyed  by  a  band  of  armed  men,  and  that 
no  return  of  the  vote  was  made  from  this  precinct.  It  appears  that  Reuben  Haines 
and  Austin  Hays  distributed  two  hundred  and  fifty-nine  (2.59)  ballots  to  persons  claim- 
ing to  be  Republicans,  but  they  do  not  know  and  do  not  pretend  tt)  know  that  these 
persons  voted  the  identical  ballots  that  were  given  to  them.  The  committee  can  not 
count  votes  for  the  contestant  npon  such  hearsay  evidence  as  is  relied  upon  here.  The 
contestant  has  failed  to  produce  the  best  evidence  that  was  attainable ;  that  is,  the 
evidence  of  the  voters  themselves. 

The  authority  quoted  by  contestant's  attorney  (McCrary  on  Elections,  Sec.  293) 
shows  that  "  where  a  voter  refuses  to  disclose  or  fails  to  remember  for  whom  he  voted, 
it  is  competent  to  resort  to  circumstantial  evidence  to  raise  a  presumption  in  regard 
to  that  fact." 

The  contestant's  attorney,  after  figuring  out  a  majority  in  Madison  County  of  four 
hundred  and  thirty-seven  (437)  votes  for  contestant,  suggests  that  the  vote  as  thus 
corrected  by  him  approximates  very  closely  the  vote  as  cast  in  the  Congressional  elec- 
tion of  1S82  when  (as  alleged)  Mr.  Bisbee,  the  Republican  candidate,  received  in  that 
county  a  majority  of  four  hundred  and  seventy-six  (476)  votes.  In  reply  to  that  sug- 
gestion we  call  attention  to  the  testimony  of  J.  P.  Perry,  p.  240,  showing  that  in  the 
Congressional  election  of  18d6,  Mr.  Dougherty,  the  Democratic  candidate,  received 
in  the  county  of  Madison  twelve  hundred  and  eighty-one  (1,281)  votes,  and  Mr. 
Greeley,  the  Republican  candidate,  received  four  hundred  and  twelve  (412)  votes. 

J.  F.  Livingston,  a  witness  for  contestant,  testifies,  p.  241,  that  in  his  opinion  the 
county  would  have  been  Democratic  if  there  had  been  a  fair  election  last  fall. 

Cornelius  T.  Coyle,  witness  for  contestant,  testifies,  p.  245,  that  in  his  opinion  at  the 
last  election  if  the  votes  cast  had  been  counted  there  would  have  been  a  majority  of 
from  forty  (40)  to  sixty  (GO)  in  favor  of  the  Democratic  nominee,  and  that  tlie  county 
has  on  several  occasions  given  a  Democratic  majority.  He  further  testifies  that, 
according  to  the  best  of  his  knowledge,  from  one  hundred  and  forty  (140)  to  one  hun- 
dred and  sixty  (160)  negroes  in  Madison  County  voted  the  Democratic  ticket  at  the 
election  of  1888. 

We  submit,  with  confidence,  that  so  far  as  the  county  of  Madison  is  concerned,  the 
contestant  has  failed  to  establish  his  claim. 

NASSAU  COUNTY. 

As  to  this  county  we  adopt  the  views  of  contestee's  attorney,  as  fol- 
lows : 

The  contestant's  attorney,  in  his  brief,  claims  that  the  return  from  district  No.  5  in 
Nassau  County,  which  return  gives  to  contestee  one  hundred  and  twenty-one  (121) 
votes,  and  to  contestant  thirteen  (13)  votes,  should  be  rejected  npon  the  ground  that 
more  than  eighty  (f^O)  persons  were  allowed  to  vote  who  were  not  residents  of  the  said 
district.  To  establish  this  claim  the  testimony  of  David  B.  Hudson  and  others,  p. 
577,  et  seq.,  is  referred  to,  but  we  submit  that  the  registration  lists  furnish  the  best 
evidence  as  to  the  residence  of  the  voters,  and  that  they  must  be  accepted  as  true  un- 
less they  are  corrected  in  the  mode  provided  by  law. 

The  testimony  of  S.  D.  Swann,  supervisor  of  registration  in  Nassau  County,  p.  586, 
shows  that  a  list  of  all  the  persons  entitled  to  vote  in  district  No.  5,  made  from  the 
registration  books  in  his  office,  was  furnished  to  the  inspectors  of  the  election  in  that 
district. 

It  appears  from  the  testimony  of  William  Green,  Republican  inspector  in  district 
No.  5,  tliat  the  names  of  the  persons  voting  were  on  the  registration  list. 

As  to  the  claim  of  contestant's  attorney  in  his  brief  that  nineteen  (19)  persons, 
whose  names  are  enumerated,  offered  to  vote  for  contestant  in  district  No.  1  and  dis- 
trict No.  12,  and  were  illegally  rejected,  we  submit  that  the  testimony  relied  upon  is 
altogether  too  vague  and  indefinite. 

The  witnesses  state  that  they  offered  to  vote  for  contestant  and  that  their  votes 
were  refused,  but,  with  one  or  two  exceptions,  they  fail  to  state  why  their  votes  were 
rejected  by  the  inspectors. 

In  the  absence  of  any  te«timony  on  the  subject  how  can  the  committee  say  that  said 
votes  were  illegally  and  improperly  rejected.  T 


618  GOODRICH   VS.   BULLOCK. 

Tlie  contestant's  attorney  in  his  brief  claims  that  the  returns  from  district  No.  9, 
according  to  which  contestee  received  two  hundred  and  twenty-one  (221)  votes  and 
contestant  received  thirty-eight  (3fc)  votes,  should  be  rejected  and  no  votes  therein 
stated  should  be  counted,  on  the  ground  that  no  election  was  held  at  the  place  desig- 
nated by  law.  It  appears  from  the  testimony  that  the  election  in  district  No.  9  was 
held  at  Booth's  Mill,  about  three-quarters  of  a  mile  distant  from  the  town  of  Calla- 
han, the  usual  place  of  voting;  but  it  is  not  shown  that  the  change  of  place  was  not 
legally  made,  that  it  was  not  duly  advertised,  or  that  the  Republican  voters  had  no 
notice  of  the  change  of  ])Iace.  On  the  contrary,  it  appears  that  the  Republican  voters 
did  have  notice,  because  they  appeared  at  the  polls  and  participated  in  the  election. 
In  the  ab8en(  e  of  any  proof  in  the  record,  it  is  fair  to  presume  that  the  change  of 
place  was  legally  made  by  the  board  of  county  commissioners,  and  that  it  was  duly 
advertised  according  to  law.  We  understand  the  fact  to  be  that  the  voting  place 
was  changed  by  the  lioard  of  county  commissioners  because  there  was  yellow  fever 
at  Callahan,  and  the  quarantine  regulations  prevented  persons  from  going  into  the 
town,  and  thai  legal  notice  of  the  change  was  published  in  the  "Florida  Mirror,"  the 
only  newspaper  published  in  the  county.  We  submit  that  the  committee  may  take 
notice  of  this  fact  without  formal  proof.  However  that  may  be,  the  courts  have  held 
that  "the  voice  of  the  people  is  not  to  be  rejected  for  a  defect  or  even  a  want  of  notice 
if  they  have  in  truth  been  called  upon  and  have  spoken."  In  this  case,  whether 
there  was  notice  or  not,  there  was  an  election,  and  the  people  of  the  district  voted, 
and  it  is  not  alleged  that  any  of  them  failed  to  vote  for  the  want  of  notice. 

The  contestant's  attorDey  claims  in  his  brief  that  the  return  from  district  No.  13, 
or  Bryceville,  should  be  rejected  and  no  votes  counted  for  either  party,  on  the  ground 
that  it  is  tainted  with  fraud,  and  a  large  number  of  persons  were  allowed  to  vote 
who  had  never  resided  in  the  district.  John  A.  Ellerman  testifies,  p.  58C,  that  there 
are  nineteen  (19)  names  of  persons  on  the  poll-list  of  district  No.  13,  known  as  Bryce- 
ville, who  were  not  residents  of  that  district  at  the  time  of  the  election,  but  he  does 
not  know  for  whom  they  voted.  The  presumjttion  is  that  their  votes  would  not  have 
been  received  unless  they  were  duly  registered,  and  that  they  would  not  have  been 
registered  unless  they  had  been  legally  qualified  voters. 

Upon  a  review  of  the  whole  case  we  are  of  opinion  that  the  result  in 
this  district  should  be  stated  as  follows : 

Net  changes  in  favor  of  contestant' in — 

Votes. 

Hamilton  County If'i 

Duval  County 34 

Columbia  County 127 

Putnam  County 15 

Orange  County 31 

Total 390 

Returned  majority  for  Bullock 3, 195 

Net  change  in  his  favor  in  Hamilton  County 2 

In  Duval 1 

3,198 
Deducting 390 

Bullock's  majority  is 2,808 

We  therefore  submit  the  following  resolutions  in  lieu  of  those  offered 
by  tlie  majority: 

Eesolved,  Tliat  Frederick  S.  Goodrich  was  not  elected  a  Eepre.'jenta- 
tive  in  tbe  Fifty  first  Congress  from  tbe  Second  Congressional  district 
of  Florida,  and  is  not  entitled  to  a  seat  tberein. 

Resolved,  Tbat  Robert  Bullock  was  duly  elected  a  Representative  in 
tbe  Fifty-first  Congress  from  the  Second  Congressional  district  of 
Florida,  and  is  entitled  to  retain  the  seat  he  now  holds. 

Levi  Maish. 
Charles  F.  Crisp. 
Charles  T.  CFi-rrall. 
Joseph  IJ.  (Juthwaite. 
L.  VV.  Moore. 
Robert  P.  C.  Wilson. 


APPENDIX. 


Washington,  D.  C,  April  22,  1890. 
The  Chairman  of  the  House  Committee  on  Privileges  and  Elections  : 

Sir:  On  the  8th  of  April,  1890,  Hon.  F.  S.  Goodrich  submitted  to  the  committee  of 
which  you  are  chairman,  certain  correspondence  between  himself  and  D.  M.  Rodeffer 
and  H.  L.  Anderson  ;  also  the  affidavits  of  Jesse  Reddick  and  of  the  said  Rudt-tfer 
and  the  said  Anderson,  for  the  purpose  of  showing  that  the  said  Jesse  Reddick  did 
give  the  testimony  purporting  to  have  been  given  by  him  and  found  on  page  893  of 
the  printed  record. 

In  reply  to  the  said  correspondence  and  aflSdavits,  I  have  the  honor  to  submit  here- 
with the  following  affidavits,  which  have  been  furnished  to  me  for  the  use  of  the  com- 
mittee : 

(1)  Affidavit  of  Jesse  Reddick,  bearing  date  April  17,  1890,  and  also  the  accompany- 
ing affidavit  of  H.  W.  Chandler,  G.  A.  Uwellv,  and  E.  Van  Hood  (marked  Exhibit  I). 

(2)  Affidavit  of  F.  E.  Pritchett,  bearing  date  April  12,  1890  (marked  Exhibit  II). 

(3)  Affidavit  of  E.  M.  Gregg,  bearing  date  April  12,  1890  (marked  Exhibit  III). 

(4)  Affidavit  of  D.  A.  Miller,  bearing  date  April  12,  1890  (marked  Exhibit  IV). 

(5)  Affidavit  of  S.  F.  Sistrunk,  bearing  date  April  12,  1890  (marked  Exhibit  V). 

(6)  Affidavit  of  Louis  Fox,  a  notary  public,  bearing  date  April  12,  1890  (marked 
Exhibit  VI). 

(7)  Affidavit  of  Ben  Cody,  bearing  date  April  9,  1890,  accompanied  by  the  certifi- 
cate of  J.  R.  Wilmer  and  J.  M.  Gates  (marked  Exhibjt  VII). 

(8)  Another  affidavit  of  Ben  Cody,  bearing  date  April  11,  1890,  accompanied  by  the 
certificate  of  John  C.  Graham,  E.  G.  Smith,  John  H.  Welsh,  D.  E.  £ichelberger,  and 
G.  U.  Sanssy,  and  also  the  certificate  of  R.  E.  Davidson  and  S.  S.  Burlingame  (marked 
Exhibit  Vlil). 

(9)  Affidavit  of  S.  S.  Burlingame,  a  notary  public,  bearing  date  April  12,  1890 
(marked  Exhibit  IX). 

(10)  Affidavit  of  Henry  W.  Chandler,  bearing  date  April  8, 1890  (marked  Exhibit  X). 
I  respectfully  submit  that  the  affidavits  herewith  presented  require  no  extended 

comment  from  me.  They  speak  for  themselves.  All  that  I  ask  is  that  the  committee 
will  give  them  a  fair  and  impartial  consideration.  If  they  will  do  so,  they  must  in- 
evitably reach  the  conclusion,  not  only  that  the  deposition  purporting  to  have  been 
given  by  Jesse  Reddick,  as  found  on  page  893  of  the  record,  has  been  fabricated,  but 
that  a  conspiracy  has  been  entered  into  between  H.  L.  Anderson,  the  contestant's  attor- 
ney, and  D.  M.  Rodeffer,  the  notary  public,  to  perpetrate  a  wrong  upon  the  contes- 
tee  in  this  contest,  and  upon  the  people  whose  representative  he  claims  to  be. 

Jesse  Reddick  swears  p'Sitively  that  the  affidavit  he  made  before  Louis  Fox,  a 
notary  public,  in  November,  1889,  was  true  ;  that  he  had  at  no  time  any  conversa- 
tion with  E.  M.  Gregg,  the  registration  officer  of  Marion  County.  Itfurth  r  appears 
from  the  affidavit  of  the  said  Jesse  Reddick  that  on  the  4th  day  of  April,  1890,  he 
was  sent  tor  to  goto  the  office  of  the  said  H.  L.  Anderson,  where  the  said  Anderson 
had  already  prepared  a  certain  affidavit  which  he  wished  him  to  make  to  the  effect 
that  some  time  during  the  registration  of  electors  for  Marion  County,  during  the 
year  1888,  he,  the  said  Reddick,  hafl  seen  a  pistol  lying  on  the  table  of  E.  M.  Gregg. 
That  the  affiant,  knowing  that  fact  to  be  true,  agreed  to  make  such  affidavit ;  where- 
upon the  said  Anderson  informed  him  that  such  were  the  contents  of  the  affidavit 
which  he  had  prepared  and  wished  him  to  sign.  That  relying  upon  and  believing 
the  statement  of  the  said  Anderson  in  relation  to  the  contents  of  the  said  affidavit, 
he  signed  the  same  without  having  it  read  to  him  by  Anderson,  by  the  notary  public, 
or  by  any  other  person. 

The  affidavit  of  F.  E.  Pritchett  shows  that  no  snch  conversation  ever  took  place 
in  his  presence  with  E.  M.  Gregg,  as  appears  in  the  pretended  testimony  of  tLe  said 
Jesse  Red<lick,  as  reported  on  page  893  of  the  record,  and  that  he  never  heard  any 
conversation  of  any  character  whatever  between  the  said  Reddick  and  the  said 
Gregg. 

It  appears  from  the  afiSdavit  of  E.  M.  Gregg  that  he  utterly  denies  ever  having 

619 


620  GOODRICH   VS.   BULLOCK. 

had  any  such  conversation  with  the  said  Jesse  Reddick  or  any  other  person.  He  in- 
dignantly repudiates  any  such  statement  as  is  attributed  to  him  in  the  pretended 
conversation  referred  to. 

D.  A.  Miller  swears  that  sometime  in  the  year  1889,  he  heard  Jesse  Roddick  say  in 
the  most  positive  terms  that  he  never  gave  any  testimony  whatever  in  the  contested 
election  case  of  Goodrich  V8.  Bullock,  and  that  he  never  knew  that  said  testimony 
was  reported  until  it  was  shown  to  him  by  the  contestee.  He  further  states  that 
Reddick  said  that  he  would  give  tiie  contestee  an  aflBdavit  to  that  effect.  That  the 
conversation  between  the  contestee  and  Reddick  took  i)!ace  in  his,  the  said  Miller's 
office,  in  Ocala  and  at  the  time  his  deputy  clerk,  S.  T.  Sistrunk,  was  present ;  that 
said  conversation  was  conducted  pleasantly  and  agreeably  and  with  no  manifestation 
of  feeling  on  the  part  of  the  contestee;  tnat  the  said  testimony  was  simply  read  to 
Reddick  and  that  he  made  the  statements  as  hereinbefore  given  iu  a  quick,  calm,  and 
deliberate  manner, 

S.  F.  Sistrunk,  the  deputy  clerk,  testifies  that  in  the  latter  part  of  the  year  1889  he 
was  present  at  a  conversation  that  took  i)lace  in  the  clerk's  office  between  the  said 
Reddick  and  the  said  contestee ;  that  the  said  Reddick  said  most  positively  and  emphat- 
ically that  he  never  gave  any  testimony  whatever  in  the  said  contested-election  case; 
that  he  never  knew  orheardof  any  such  testimony  as  given  by  himself  until  it  was  read 
to  him  by  the  contestee;  and  that  he  would  make  an  affidavit  to  that  effect.  This 
•witness  further  states  that  the  conversation  between  the  two  was  in  an  ordinary 
tone,  the  contestee  simply  asking  Reddick  if  he  had  testified  in  said  case  and  Red- 
dick answering  that  he  bad  not  and  knew  nothing  about  it  at  all. 

Louis  Fox,  a  notary  public,  swears  that  he  has  known  Jesse  Reddick  for  a  number 
of  years ;  that  on  or  about  the day  of  November,  1889,  the  said  Reddick  ap- 
peared before  him  and  made  the  affidavit  attached  marked  "  Louis  Fox"  in  red  ink ; 
that  he  read  the  said  afiSdavit  over  to  the  silid  Reddick  and  explained  the  contents 
thereof  to  him  ;  that  the  contestee  was  not  present  in  the  room  when  the  said  affidavit 
was  made  ;  and  that  the  said  Jesse  Reddick  swore  before  him,  the  said  Louis  Fox,  as 
notary  that  the  contents  of  the  affidavit  were  true. 

The  first  affidavit  of  Ben  Cody  shows  that  sometime  during  the  taking  of  the  testi 
mony  in  this  contest  H.  L,  Anderson,  attorney  at  law,  procured  him  to  testify  for  the 
contestant;  that  at  the  instance  of  the  said  Anderson  he  went  to  Anderson's  law  office, 
where  Anderson  requested  him  to  hold  up  his  hand  to  be  sworn  before  him,  the  said 
Anderson;  that  Anderson  and  none  other  administered  the  oaih  to  him  ;  that  Ander- 
son then  reduced  his  testimony  to  writing;  that  he  is  unacquainted  with  D.  M.  Ro- 
defFer,  who  reported  his  testimony  aa  it  ap})ears  in  the  record  at  pages  840,  841 ;  that 
he  has  never  seen  the  said  Rodefifer  to  his  knowledge,  and  would  not  know  him  if  he 
should  see  him. 

In  his  second  afiSdavit  Ben  Cody  reiterates  the  statement  contained  in  his  first  affi- 
davit and  declares  it  to  be  absolutely  true.  He  further  testifies  that  on  the  evening 
of  the  next  day  after  his  first  affidavit  was  made,  the  said  Anderson  came  to  him  and 
complained  that  he  bad  made  an  affidavit  against  him  and  threatened  if  he  did  not 
change  it  at  once  he  would  have  hini  put  in  jail,  notwithstanding  he  had  already 
stated  to  him  that  he  had  simplj'  sworn  to  the  truth.  It  appears  that  this  second 
affidavit  of  Ben  Cody  was  read  over  to  him  by  the  notary  and  fully  explained  to  him 
before  signing  it  in  the  presence  of  John  C.  Graham,  E.  G.  Smith,  John  H.  Welsh, 
D.  E.  Eichelberger,  G.  Saussy,  who  certify  that  the  affidavit  was  signed  in  their  pres- 
ence and  that  they  know  Cody  and  have  known  him  for  several  years  to  be  an  honest, 
truthful,  upright,  and  good  citizen.  S.  S.  Bnrlingame,  the  notary  public,  certifies 
that  John  C.  Graham  and  E.  G.  Smith  are  both  colored  men,  that  Johu  H.  Welsh  is  a 
white  man,  all  of  whom  are  prominent  leading  Republicans  in  the  county  of  Marion; 
that  they  and  the  others  who  certify  to  the  good  character  of  Cody  are  known  to  him 
as  good,  worthy,  and  highly  respected  citizens  of  that  county. 

Another  affidavit  of  S.  S.  Bnrlingame,  notary  public,  is  exhibited,  in  which  it  ap- 
pears that  on  Friday,  the  fourth  day  of  April,  1890,  Jesse  Reddick  produced  to  him  a 
paper  writing  to  be  sworn  to  ;  that  he  asked  Reddick  if  the  said  paper  writing  had 
been  read  to  him  ;  whereupon  said  Reddick  answered  in  the  affirmative  aud  saidtbali 
Mr.  H.  L.  Anderson  had  read  the  same  to  him  ;  that  believing  said  Reddick  was  fully 
aware  of  the  contents  of  said  paper,  he  administered  the  oath  to  him  and  attached 
his  signature  and  seal  of  office  ;  that  he  did  not  read  the  said  affidavit  to  Reddick  ; 
did  not  read  it  himself  and  was  not  aware  of  its  contents;  that  the  said  affidavit  was 
taken  by  him  in  the  office  of  H.  L.  Anderson,  whither  he  had  been  called  and  in  the 
presence  of  the  said  H.  L.  Anderson  and  D.  M.  Rodeffer. 

The  only  other  affidavit  exhibited  is  that  of  Henry  W.  Chandler,  the  Republican 
candidate  for  secretary  of  state  and  acolored  man.  This  testimony,  while  notstrictly 
relevant  to  the  present  issue,  is  oflFered  for  the  purpose  of  rebutting  the  statements  in 
the  correspondence  and  affidavits  filed  with  the  committee  by  the  contestant  since 
the  oral  argument,  with  reference  to  the  methods  in  office  of  E.  M.  Gregg,  supervisor 
of  registration.    This  testimony  shows  that  prior  to  the  election  held  on  the  6th  day 


GOODRICH   VS.   BULLOCK.         '  621 

of  November,  1888,  the  said  Henry  W.  Chandler  and  David  S.  Williams,  who  was  a 
candidate  for  the  office  of  county  judge,  were  accorded  the  courtesies  of  and  had  seats 
in  the  office  of  Mr.  Gregg  while  the  voters  were  being  registered. 

I  have  thus  called  attention,  aa  briefly  as  possible,  to  the  contents  of  the  affidavits 
herewith  exhibited,  and  confidently  submit  that  they  are  absolutely  conclusive  and 
overwhelming  as  to  the  issue  which  has  been  raised  in  regard  to  the  testimony  of 
Jesse  Eeddick.  They  not  only  prove  beyond  question  that  no  such  testimony  was 
ever  given  by  Jesse  Eeddick,  as  is  reported  on  page  893  of  the  record,  but  they 
furthermore  show  that  a  system  of  forgery  and  deliberate  manufacture  of  testimouy 
has  been  resorted  to  in  this  case,  which  not  only  merits  the  emphatic  condemnation 
of  this  committee,  but  of  honorable  and  fair-minded  men  everywhere. 

In  conclusion,  1  deem  it  not  inappropriate  to  invite  the  attention  of  the  committee 
to  the  marked  contrast  between  the  methods  adopted  by  myself  and  my  adversaries 
in  the  procurement  of  the  affidavits  of  Jesse  Eeddick.  I  desire  also  to  place  upon 
record  my  emphatic  denial  of  the  statement  made  by  H.  L.  Anderson  as  to  the  agree- 
ment between  us  for  the  taking  of  testimony  in  our  absence.  It  is  not  true  that  I 
entered  into  any  such  agreement  as  is  claimed  by  him.  The  committee  will  observe 
that  his  statements  as  to  this  matter  are  contradictory  and  wholly  inconsistent. 
Especial  attention  is  invited  to  the  postscript  to  his  letter  addressed  to  Mr.  Goodrich, 
bearing  date  April  4, 1890,  and  his  affidavit  of  the  same  date.  In  the  one  he  states  as 
follows : 

"About  the  question  of  notice,  I  always  had  a  notice  served  on  Bullock  from  day 
to  day.     It  was  not  necessary  to  give  him  names  of  all  the  witnesses." 

In  his  affidavit  he  states  as  follows  :  "Affiant  further  says  that  said  contestee  in 
the  beginning  waived  all  formal  notice  of  taking  from  day  to  day  the  testimony  in 
said  cause  but  agreed  that  after  commencement  the  taking  should  proceed  without 
further  notice." 

Apologizing  to  the  committee  for  the  length  of  this  communication,  and  hoping 
that  they  will  properly  appreciate  my  motives, 
I  am,  very  respectfully, 

R.  Bullock. 


No.  1. — Affidavit  of  Jesse  Reddiclciefore  Fox  denying  testimony  as  appears  in  record  of  con- 
test testimony  made  at  request  of  Bullock. 

State  of  Florida,  Marion  County  : 

On  this  the day  of  November,  A.  D.,  1889,  personally  appeared  Jesse  Eeddick, 

who,  being  duly  sworn,  says  that  he  had  read  to  him  from  the  printed  testimony  taken 
before  D.  M.  Rodeffer,  a  notary  public,  in  the  contest  case  of  F.  S.  Goodrich  vs.  Eob- 
ert  Bullock,  for  a  seat  in  Congress,  whereiu  he,  the  said  Jesse  Reddick,  on  page  893, 
of  said  printed  testimony  purports  to  have  sworn  before  the  said  Eodeffer  to  a  con- 
versation he  had  with  E.  M.  Gregg,  registration  officer  for  Marion  County,  Florida, 
prior  to  the  election  on  the  6th  of  November,  18-8,  when  the  said  E.  M.  Gregg  ad- 
mitted, among  other  things,  that  he  was  hired  by  the  county  commissioners  to  strike 
off  Republicans  from  the  registration  list,  etc.,  etc. 

This  deponent  solemnly  swears  that  he  never  at  auy  time  had  any  conversation 
with  the  said  registration  officer,  nor  did  he  ever  make  any  such  testimony  before  the 
said  Rodeffer  as  aforesaid,  and  that  he,  the  said  Jesse,  is  the  only  person  in  this  com- 
munity bearing  the  name  of  Jesse  Eeddick,  and  that  he  has  been  living  in  this  com- 
munity a  number  of  years,  and  knows  there  is  no  other  Jesse  Eeddick  living  in  this 
community. 

Jesse  (his  x  mark)  Eeddick. 

Sworn  to  and  subscribed,  day  and  year  above  written. 

[seal.]  Louis  Fox, 

Notary  Puilio,  Marion  County,  Fla. 


No.  2. — Affidavit  of  Jesse  Eeddick  made  at  request  of  Anderson  denying  affidavit  made  at 

request  of  Bullock. 

The  State  of  Florida,  Marion  County: 

Personally  appeared  before  nie  Jesse  Eeddick,  who,  being  duly  sworn,  says:  That 
he  is  the  same  person  who  made  affidavit  in  tlie  contest  election  case  of  Fred  S.  Good- 
rich vs.  E.  Bullock,  for  a  seat  in  the  Fifty-firnt  Congress  of  the  United  States,  repre- 
senting the  second  Congressional  district  of  Florida,  which  affidavit  is  printed  on  the 
Ydcord  of  said  contested  election  case  at  page  893. 


622  GOODRICH   VS.    BULLOCK. 

Affiant  farther  states  positively  t1iat  on  the  2f'th  day  of  February,  A.  D.  1889,  he 
went  to  the  office  of  the  commis-sioners  appointed  to  tat<e  thn  tewtiiuony  in  said  case 
for  Marion  County,  to  wit,  the  office  of  D.  M,  Koilelfer,  at  Ocala,  Fla.,  and  then 
and  there  made  the  statements  contained  in  his  said  affidavitprinted  on  said  pageH93, 
and  swore  to  the  same  before  D.  M.  Rodefler,  the  commissioner  appointed  to  take 
testimony  for  contestatit,  Goodrich. 

Affiant  further  says  that  he  does  not  remember  whether  the  attorneys  for  the  re- 
spective parties  were  present  or  not,  but  affiant  states  that  he  did  make  the  affidavit 
verbatim  as  the  same  appears  in  said  record,  and  affiant  further  states  that  the  facts 
related  in  said  affl'lavit  are  true  as  therein  stated,  and  that  tlie  conversation  related 
therein  between  affiant  and  said  E.  M.  Gregjr,  actually  occurred,  and  that  said  Gregg 
made  to  affiant  the  statement  in  said  affidavit  contained. 

Affiant  further  says  that  if  he  ever  signed  any  paper  containing  a  statement  in 
denial  of  said  affidavit  that  he  signed  same  in  ignorance  of  its  contents  and  without 
knowing  what  it  contained. 

Affiant  says  that  he  is  a  man  of  limited  education  and  nnable  to  read  writing,  but 
that  this  affidavit  has  been  read  over  to  him  and  its  contents  fully  explained  before 
he  signed  same. 

Jesse  (his  x  mark)  Reddick. 

Sworn  to  and  subscribed  before  me  this  4th  day  of  April,  1890. 

[SEAI..]  S.   8.   BUKLINGAME, 

S^otary  Public. 


No.  3. — Affidavit  of  Jesse  Reddick  explaining  hoio  Anderson  fooled  him  into  vxaTcing  affidavit 
denying  his  affidavit  to  Bullock  denying  testimony  attributed  to  him  in  the  record  of  con- 
test testimony. 

State  of  Florida,  Marion  County  : 

Personally  came  Jesse  Reddick,  who,  being  dnly  sworn,  says:  That  he  is  the  iden- 
tical Jesse  Reddick  who  made  the  affidavit  before  Louis  Fox,  notary  public,  in  No- 
vember, 1889,  in  which  affidavit  he  stated,  amongst  other  things,  that  he  had  heard 
read  from  the  printed  testimony  taken  in  a  case  wherein  F.  S.  Goodrich  was  contest- 
ant and  Robert  Bullock  was  contestee  for  a  seat  in  the  Fifty -lirst  Congress  of  the 
United  States,  in  which  affidavit,  before  the  said  Fox,  this  deponent  stated  that  he 
had  at  no  time  any  conversation  with  E.  M.  Gregg,  registration  officer,  and  wherein 
he  further  said  that  he  did  not  make  any  testimony  bef  re  D.  M.  Roueffer,  a  notary 
public,  taking  testimony  on  the  part  of  said  contestant,  all  of  which  affidavit  made 
at  said  time  was  true,  and  he  now  states  the  same  to  be  true.  Affiant  further  says 
that  on  Friday,  April  4,  1890,  one  H.  L.  Anderson,  of  Ocala,  Fla.,  sent  a  carriage  to 
the  East  Florida  Ice  Manufacturing  Company,  where  this  affiant  was  at  work,  with 
the  request  that  the  affiant  should  come  up  town.  This  affiant,  being  engaged  at  the 
time,  could  not  go  in  response  to  the  request ;  that  afterwards,  later  in  the  afternoon, 
said  H.  L.  Anderson  came  to  the  ice  factory  in  person  and  requested  this  affiant  to 
come  up  town,  that  he  wanted  him  to  make  an  affidavit;  that  affiant,  after  working 
hours,  did  go  up  to  the  office  of  said  H.  L.  Anderson,  where  the  said  Anderson  had 
already  prepare<t,  before  this  affiant  arrived,  a  certain  affidavit;  that  he,  the  said 
Anderson,  wanted  him  to  swear  that  some  time  during  the  registration  of  electors 
for  Marion  County  for  the  year  1888  this  atliant  had  seen  a  pistol  lying  on  the  table 
of  E.  M.  Gregg,  supervisor  of  registration.  Tliisaffiaut  knowing  said  fact  to  be  true, 
stated  that  he  would  make  such  affidavit,  whereupon  said  H.  L.  Anderson  informed 
him  that  such  statement  was  the  contents  of  the  affidavit  which  he  had  prepared  and 
wished  him  to  sign.  That  this  affiant  is  a  colored  man  and  can  neither  read  nor 
write  and  that,  relying  upon  and  believing  the  statement  of  said  Anderson  in  relation 
to  the  contents  of  said  affidavit  signed  the  same.  This  affiant  then  appeared  before 
one,  S.  S.  Burlinganie,  a  notary  public,  for  the  purpose  of  swearing  to  said  affidavit 
before  said  Burlingame;  that  the  said  Burlingatne  asked  this  affiant  if  he  knew  the 
contents  of  this  affidavit ;  that  this  affiant  informed  said  Burlingame  that  he  did,  be- 
lieving said  affidavit  to  contain  only  the  one  fact  in  relation  to  said  "pistol  mentioned 
by  said  Anderson  ;  that  the  said  Burlingame  then  requested  this  affiant  to  hold  np 
his  hand,  and  asked  this  affiant  if  he  swore  that  the  contents  of  this  affidavit  were 
true,  whereupon  this  affiant  answered  in  the  affirmative.  This  affiant  further  stateH 
that  in  making  this  affidavit  he  intended  and  believed  that  he  was  only  swearing  to 
the  one  fact  in  relation  to  the  said  pistol.  Affiant  further  states  that  he  has  heard 
read  to  him  the  affidavit  which  he  is  informed  and  believes  is  the  affidavit  that  ha 
signed,  which  affidavit  is  as  follows : 


GOODRICH   VS.    BULLOCK.  *  623 

The  State  of  Florida,  Marion  County: 

Personally  appeared  before  me  JeHse  Reddick,  who,  beingr  dnly  sworn,  says:  Tbat 
he  is  the  same  pt-rson  who  made  affidavit  in  the  contest  election  case  of  Fred  S.  Good- 
rich V8.  R.  Bullock  for  a  seat  in  the  Fifty-first  Congress  of  the  United  States,  repre- 
senting the  second  Congressicmal  district  of  Florida,  which  afhdavit  is  printed  on 
the  record  of  said  contested  election  case,  at  pa«;e  No.  893. 

Affiant  further  states  positively  that  on  the  Slith  day  of  February,  1889,  he  went  to 
the  office  of  the  commissioner  appointed  to  rake  the  testimony  in  said  case  for  Marion 
County,  to  wit,  the  office  of  D.  M.  KodeftVr.  at  Ocala,  Floriila,  and  then  and  there 
made  the  statement  contained  in  his  said  affidavit  printed  on  said  page  No.  893  and 
swort-  to  the  same  before  D.  M.  RodeftVr,  the  conmiissiouer  appointed  to  take  testi- 
mony for  the  contestant,  Goodrich.  Affiant  further  states  that  he  does  not  remem- 
ber whether  the  attorneys  for  the  respective  parties  were  present  or  not.  and  affiant 
states  that  he  did  make  the  affidavit  verbatim  as  the  same  appears  in  said  record 
and  affiant  further  states  that  the  facts  related  in  said  affidavit  are  true  as  therein- 
stated:  and  that  the  conversation  related  therein  between  affiant  and  said  E.  M. 
Greirsr  afi.nally  occurred,  and  said  Gregg  made  to  affiant  the  statement  in  said 
affidavit  contained. 

Atliaut  further  says  that  if  he  ever  signed  any  paper  containing  a  statement  in  de 
nial  of  said  affidavit,  that  he  signed  same  in  ignorance  of  its  contents,  and  without 
knowing  what  it  contained. 

Affiant  says  that  he  is  a  man  of  limited  education,  and  unable  to  read  writing,  but 
that  this  affidavit  has  been  read  over  to  him  and  its  contents  fully  explained  before 
lie  signed  the  same.  Jesse  (Iiis  x  mark)  Reddick. 

Sworn  to  and  subscribed  before  me  this  4th  day  of  April,  1890. 

S.    S.   BURLIVGAME, 

Notary  Public. 

And  this  affiant  now  states  that  no  such  affidavit  was  ever  read  to  him  bj-^  H.  L. 
Anderson,  S.  S.  Bnrlingame,  or  any  other  person,  and  that  he  had  not  intended  to 
make  any  such  statements  as  are  contained  in  said  affidavit.  Affiant  further  states 
that  he  has  heard  read  to  him  from  the  printed  record  in  said  contest  case  on  page 
893,  and  again  repeats  that  the  same  is  absolutely  and  unconditionally  false  and 
fraudulent  and  that  he  gave  no  such  testimony,  or  testimony  ot  auy  character  what- 
ever before  said  D.  M.  Rodeffer  or  any  other  person. 

Affiatit  further  states  that,  as  to  the  said  conversation  which  said  record  reports 
that  he  had  with  E.  M.  Gregg,  supervisor  of  registration  for  Marion  County,  in  the 
presence  of  Mr.  Priichett,  it  is  absolutely  untrue,  and  that  he  had  no  such  conversa- 
tion with  said  E.  M.  Gregg  at  said  time  or  any  other  time. 

Jesse  (his  x  mark)  Reddick. 

Subscribed  and  sworn  to  before  me  this  17th  day  of  April,  1890. 

LSEAL.]  R.  A.'BUHFORD, 

Notary  public,  Slate  of  Florida  at  large. 

State  ok  Florida,  Marion  County : 

Personally  came  H.W.  Chandler,  G.  A.  Dwelley,  E.  "Van  Hood,  who,  being  severally 
sworn,  say  that  they  were  each  one  present  and  heard  the  foregoing  type-priuted 
affidavit  on  three  sheets  of  paper  read  over  to  and  explained  to  Jesse  Reddick,  in  our 
presence,  that  he,  the  said  Reddick,  knew  contents  thereof  and  that  it  was  true,  and 
that  he  fully  understood  the  same. 

H.  W.  Chandler, 

G.  A.  Dwklley, 

E.  Van  Hood,  M.  D. 

Sworn  and  subscribed  before  me  on  this  April  17th,  1890. 

[notary  seal.]  R.  a.  Burford, 

Notary  Public,  Stale  of  Florida  at  large. 

I  certify  that  the  foregoing  affidavit  printed  with  type-writter  on  three  pieces  of 
paper,  was  read  over  to  Jess.  Reddick  by  me  in  the  presence  of  H.  W.  Chandler,  a 
leading  Republican  and  candidate  for  secretary  of  state  on  Republican  ticket  in  1888, 
G.  A.  Dwelley,  a  well-known  Republican,  and  commander  of  Post  No.  17,  Grand  Army 
of  the  Republic,  and  E.  Van  Hood,  before  he  signed  the  same  and  it  was  explained  to 
him,  and  he  declares  that  he  fully  understands  the  same,  and  contains  what  tie  intends 
to  say. 

In  testimony  whereof  I  set  my  hand  and  official  seal  at  Ocala  on  this  17th  day  of 
April,  A.  D.  1890.     Each  of  said  parties  are  personally  known  to  me. 

[SEAL.]  R.  A.  Burford, 

Notary  Public,  Stale  of  Florida  at  large. 


624  GOODRICH   VS.   BULLOCK. 

Affidavit  of  Louis  Fox  and  copy  of  affidavit  of  Jesse  Reddick  explaining  under  what  cir- 
cumstances he  took  Beddick'sjbst  affidavit  at  my  instance. 

The  State  of  Florida,  County  of  Marion: 

Persoually  appears  Louis  Fox,  who,  being  duly  sworn,  says  that  he  is  a  citizen  of 
Ocala  for  thirteen  years;  that  he  has  personally  known  one  Jesse  Reddick  for  a  num- 
ber of  years;  that  on  about day  of  November,  1889,  in   the  city  of  Ocala,   said 

Jesse  Reddick  appeared  before  him  and  subscribed  to  the  following  afiidavit,  which 
is  hereunto  attached,  marked  "Louis  Fox,"  in  red  ink,  with  his  notarial  seal  there- 
under, and  made  part  of  this  affidavit.  Affiant  further  swears  that  he  read  the 
said  affidavit  to  Jesse  Reddick  and  explained  the  contents  thereof  to  him,  at  which 
time  no  other  person,  that  this  affiant  remembers,  was  present;  that  the  affiant  is 
positive  that  General  Robert  Bullock  was  not  present  in  the  room  when  this  affidavit 
■was  made,  and  that  the  said  Jesse  Reddick  swore  before  him  that  the  contents  to  his 
affidavit  were  true;  that  to  the  best  of  the  knowledge  and  recollection  of  this  affiant 
the  affidavit  hereto  attached  signed  by  Jesse  Reddick,  and  sworn  to  before  him,  is  a 
true  copy  of  the  affidavit  that  Jesse  Reddick  signed  and  swore  to  before  him  on  the 
day  therein  mentioned. 

Louis  Fox. 

Sworn  to  and  subscribed  before  me  on  this  12th  day  of  April,  A.  D.  1890. 

[seal.]  S   S.  Burlixgame, 

Notary  Puhlio. 

State  of  Florida,  Marion  County  : 

On  the day  of  November,  A.  D.  1889,  personally  appeared  Jesse  Eeddlck,  who, 

being  duly  sworn,  says  that  he  bad  read  to  him  from  the  printed  testimony  taken  be- 
fore D.  M.  Eoddeffer,  a  notary  public  in  the  contest  case  of  F.  S.  Goodrich  vs.  Robert 
Bullock  for  a  seat  in  Congress,  wherein  he,  the  said  Jesse  Reddick,  on  page  893  of  said 
printed  testimony,  purports  to  have  sworn  before  the  said  RoddelFer  to  a  conversa- 
tion he  had  with  E.  M.  Gregg,  registrating  officer  for  Marion  County,  Fla.,  prior  to 
the  election  on  the  Gth  day  of  November,  1888,  when  the  said  E.  M.  Gregg  admit- 
ted, among  other  things,  that  he  was  hired  by  the  county  commissioners  to  strike  oflf 
Republicans  from  the  registration  list,  etc.  This  deponent  solemnly  swears  that  he 
never  at  any  time  had  any  conversation  with  the  said  registration  officer,  nor  did  he 
ever  make  any  such  testimony  before  the  said  Roddefler  as  aforesaid,  and  that  he, 
the  said  Jesse,  is  the  only  person  in  the  community  bearing  the  name  of  Jesse  Red- 
dick, and  that  he  has  been  living  in  this  community  a  number  of  years  and  knows 
there  is  no  other  Jesse  Reddick  living  in  this  community. 

Jesse  (his  x  mark)  Reddick. 

Sworn  and  subscribed  to  day  and  year  above  written. 

[seal.]  Louis  Fox, 

Notary  Public,  Marion  County,  Fla. 


Affidavit  of  S.  T.  Sistrunk,  showing  how  I  approached  Beddick  about  his  testimony  in 

printed  testimony  contest. 

State  of  Florida,  Marion  County : 

Personally  came  S.  T.  Sistrunk,  who,  being  sworn,  says  that  lie  is  and  has  been 
deputy  clerk  of  the  circuit  court  for  Marion  County,  Fla.,  for  about  three  years 
continuonsly  last  past.  That  he  is  personally  acquainted  with  one  Jesse  Reddick,  a 
colored  man.  That  some  time  during  the  year  1889,  in  the  latter  part  of  it,  that  he 
•was  presf'ut  at  a  conversation  between  the  said  Reddick  and  General  R.  Bullock  that 
took  place  iu  said  clerk's  office:  that  said  Reddick  most  ])ositively  and  emphatically 
said  that  he  never  gave  any  testimony  whatever  in  the  contested-election  case 
■wherein  F.  S.  Goodrich  was  contestant  and  Robert  Bullock  contestee.  The  said 
Eeddick  stated  at  the  same  time  that  he  never  knew  nor  heard  of  any  testimony 
given  by  himself  until  it  was  shown  or  read  to  him  by  General  Bullock,  and  stated  that 
he  would  make  an  affidavit  to  General  Bullock  stating  that  he  had  never  testified  before 
D.  M.  Rodifler  in  said  contest  case.  That  the  said  conversation  was  in  ordinary  con- 
versational tone  and  manner.  General  Bullock  simply  asking  Jesse  Reddick  if  he  had 
testified  in  said  case,  aud  Reddick  answering  that  he  had  not,  and  knew  nothing 
about  it  at  all.  General  Bullock  read  the  testimony  to  Reddick,  and  after  hearing  it 
Reddick  denied  ever  hearing  or  having  testified  to  any  such  thing. 

S.  T.  Sistrunk. 

Sworn  aud  subsciibed  before  me  on  this  the  l^th  day  of  April,  A.  D.  1690. 

[seal.  1  Richard  McConathy, 

County  Judge. 


GOODRICH   VS.    BULLOCK.  625 

Affidavit  of  E.  M.  Gregg  as  to  testimony  of  Beddick  in  the  printed  contest  testimony. 
State  of  Florida,  Marion  County : 

Personally  came  E.  M.  Gregg,  who,  being  sworn,  says:  That  during  the  year  1888 
he  was  the  supervisor  of  registration  of  electors  for  Marion  County,  Fla. ;  that 
his  office  was  in  the  southwest  corner  room  of  the  court-house  in  Ocala.  That  said 
room  is  a  small  room  of  the  dimensions  of  ten  by  twelve  feet ;  that  in  said  room  is  a 
large  iron  safe,  a  flat  top  desk,  an  ordinary  table  of  three  by  six  feet,  some  small  file 
cases,  etc;  that  affiant  is  also  deputy  clerk  of  the  board  of  county  commissioners; 
that  said  office  is  entirely  too  small  to  comfortably  accommodate  the  incumbent  of  the 
office ;  that  there  is  no  private  railing  in  any  portion  of  the  office,  but  the  whole  an 
open  room,  in  which  the  officer,  visitors,  and  those  on  business,  and  loafers  are  all 
promiscuously  mixed.  Affiant  further  states  that  the  registration  books  of  Marion 
County,  Fla.,  consist  of  fifty-six  small  books,  and  during  the  registration  of  elec- 
tors of  Marion  County,  Fla.,  for  the  year  1888  it  was  very  difficult  to  prevent 
persons  in  the  office  from  handling  and  marking  the  books.  Being  so  many 
small  books,  it  was  difficult  for  this  affiant  to  furnish  information  to  those  inquiring 
and  take  care  of  the  other  books;  that  when  affiant  would  put  down  one  book,  some 
restless,  impatient  persons  who  could  not  wait  their  turn  would  be  pulling  at  the  books 
to  get  his  information  for  himself,  and  a  half  dozen  making  different  requests  at  the 
same  time. 

That  affiant  discharged  the  duties  of  said  office  honestly,  faithfully,  and  justly,  seek- 
ing and  obtaining  the  best  opinion  of  lawyers,  whether  Republican  or  Democrat,  as 
to  my  duties  under  the  law,  and  then  pursued  them  to  the  very  utmost  of  my  capacity 
and  ability. 

Affiant  further  states  that  he  extended  the  courtesies  of  the  office  as  much  to  one 
party  as  another ;  that  it  would  have  been  utterly  impossible  for  this  affiant,  or  any 
other  person,  to  proclaim  an  invitation  to  the  public  to  come  into  the  office  and  for 
him  to  have  transacted  any  business  whatever ;  that  the  privileges  of  the  office  were 
extended  to  Mr.  Henry  W.  Chandler,  a  colored  man  and  a  candidate  on  the  Republi- 
can ticket  for  the  office  of  secretary  of  state,  as  a  representative  of  the  colored  peo- 
ple and  the  Republican  party  of  the  State,  and  Mr.  D.  S.  Williams,  who  is  a  white 
man  and  was  a  candidate  for  the  office  of  judge  of  the  county  court  for  Marion  County, 
Fla.,  on  the  Republican  ticket,  and  to  others  without  regard  to  party  to  the  full  ex- 
tent that  it  was  possible  for  me  to  do  and  attend  to  the  duties  of  the  office. 

Affiant  states  that  he  has  read  from  the  printed  record  of  the  testimony  in  the  con- 
tested-election case  of  Hon.  F.  S.  Goodrich  vs.  Hon.  R.  Bullock,  on  page  893,  what 
purports  to  be  the  testimony  of  one  Jesse  Roddick,  before  D.  M.  Rodiffer,  in  which 
said  Reddick  testifies  to  a  conversation  that  he'had  with  this  affiant.  This  affiant, 
in  the  most  positive,  emphatic,  absolute,  and  direct  manner,  denies  the  same  to  be 
absolutely  and  wholly  untrue ;  that  no  such  conversation  was  ever  had  between 
this  affiant  and  Jesse  Reddick,  or  any  other  person ;  nor  any  conversation  of  any- 
such  character  whatsoever  with  any  person  whomsoever.  Affiant  further  states  that 
not  only  does  he  deny  the  conversation,  or  any  other  such  conversation  at  any  time, 
but  most  positively  denies  the  existence  of  the  facts  stated  in  said  conversation, 
aud  says  that  such  statement  is  the  conception  of  a  villanous,  dishonest,  lying  mind, 
and  the  production  of  a  corrupt,  depraved,  unscrupulous,  and  wicked  heart. 

E.  M.  Gregg, 

Sworn  to  and  subscribed  to  before  me  this  13th  day  of  April,  1890. 

[seal.]  S.  S.  Burlingame,   . 

Notary  Puhiio. 


Affidavit  of  Ben  Cody  as  to  how  Anderson  personated  the  officer,  having  no  authority  him- 
self, and  administered  an  oath  to  Cody,  a  colored  man. 

The  State  of  Florida,  County  of  Marion  : 

Before  me  personally  came  Ben  Cody,  who,  being  by  me  duly  sworn,  says:  That  ho 
knows  of  no  other  Ben  Cody  in  said  county ;  that  he  has  resided  in  said  county  for 
about  six  years ;  that  sometime  during  the  taking  of  testimony  in  the  contested  elec- 
tion case  wherein  F.  S.  Goodrich  was  contestant  and  Robert  Bullock  was  contestee  for 
a  seat  in  the  Fifty-first  Congress  of  the  United  States,  H.  L.  Anderson,  esq.,  attorney- 
at-law,  procured  this  affiant  to  testify  on  the  part  of  the  contestant ;  that  this  affiant 
at  the  instance  of  the  said  Anderson  went  to  the  law  office  of  the  said  Anderson  where 
said  Anderson  requested  this  affiant  to  hold  up  his  hand  to  be  sworn,  before  him  the 
said  Anderson,  and  ho  the  said  Anderson,  and  none  other,  administered  the  oath  to  him 
this  affiant ;  that  said  Anderson  then  reduced  to  writing  the  evidence  of  this  affiant ; 
that  there  were  no  other  persons  present  during  the  whole  time  this  affiant  was  in  the 
office  of  the  said  Anderson  except  this  affiant,  H.  L.  Anderson,  and  an  old  colored 
man  with  whom  this  affiant  is  unacquainted  ;  aud  this  affiant  states  that  he  is  unac- 
quainted with  p.  M,  Roddeffer,  tt>e  09*317  puWc,  YrUo  reported  the  testimony  of  tbisi 


626  GOODRICH   VS.    BULLOCK. 

affiant  as  the  same  appears  in  the  record  of  said  testimony  on  pages  840  and  841 ;  that 
should  this  affiant  see  the  said  Roddeffer  now  he  would  not  know  him  ;  that  he  has 
never  seen  the  said  Roddeffer  that  he  knows  of. 

Bkn  Cody. 

Sworn  to  and  subscribed  to  in  my  presence  by  the  said  Ben  Cody,  and  I  certify  thnt 
I  have  heard  read  the  above  affidavit  over  to  him  and  he  says  he  fully  uudeioUuwj 
the  same,  this  April  9th,  1890. 

[sEAX.]  Louis  Fox, 

Notary  Puhlic. 

We  certify  that  the  above  affidavit  was  read  over  to  Ben  Cody  in  our  presence  and 
he  acknowledged  to  us  that  he  fully  understands  the  same,  to  which  we  swear  to  be 
true. 

J.  R,  WiLMER. 

J.  M.  Gates. 
Sworn  to  before  me  this  April  9th,  1890. 
[seal.]  Louis  Fox, 

Notary  Public. 


Affidavit  of  Ben  Cody  as  to  how  Anderson,  by  threats,  tried  to  make  him,  Cody,  change  his 
affidavit  as  to  Anderson's  personating  an  officer. 

State  of  Florida,  Marion  County: 

Personally  came  Ben  Cody,  who,  being  sworn,  says:  That  he  is  a  colored  man, 
and  politically  a  Republican ;  that  on  the  9th  day  of  April,  1890,  in  the  city  of 
Ocala,  and  in  the  county  of  Marion,  he  made  an  affidavit  before  Louis  Fox,  as  no- 
tary public,  in  which  affidavit  I  statied  substantially  that  when  I  appeared  as  a  wit- 
ness in  the  Congressional  contest  in  a  case  wherein  F.  S.  Goodrich  was  contestant  and 
Robert  Bullock  contestee  for  a  seat  in  the  Fifty-first  Congress  of  the  United  States; 
that  one  Mr.  H.  L.  Anderson,  of  Ocala,  on  the  occasion  of  my  testifying  administered 
the  oath,  and  wrote  down  my  testimony,  and  that  no  one  was  present  except  this 
affiant,  H.  L.  Anderson,  and  one  old  colored  man,  whose  name  I  do  not  know,  and 
that  I  was  unacquainted  with  one  D.  M.  RodefFer,  had  never  seen  him,  and  would 
not  know  him  if  I  was  to  see  him.  I  again  repeat  tho  truthfulness  of  said  statements 
contained  in  said  affidavit  as  being  absolutely  true.  This  affiiint  further  states  that 
on  the  evening  of  the  next  day  after  said  affidavit  was  made,  the  same  H.  L.  Ander- 
son came  to  this  affiant  and  inquired  of  this  affiant  if  he  had  made  such  an  affidavit, 
whereupon  affiant  informed  him  that  he  had.  Anderson  then  said  :  "  Ben,  why  did 
you  make  this  affidavit  against  me?"  Affiant  then  stated  to  said  Anderson,  "that 
I  did  not  make  it  against  you,  but  simply  swore  to  the  truth."  Whereupon  said  An- 
derson told  affiant,  "Ben,  you  go  and  change  that  affidavit;  if  you  do  not  I  will  bo 
damned  if  I  don't  have  you  put  in  jail,  so  go  on  now  at  once  and  do  it." 

Ben  Cody. 

Sworn  and  subscribed  before  me  on  this  the  11th  day  of  April,  1890. 

[seal.]  S.  S.  Burlingame, 

Notary  Public. 

Witness  to  signature  of  Ben  Cody: 
Jno.  C.  Graham. 
R.  E.  Davidson. 

I,  S.  S.  Burlingame,  notary  public,  do  certify  that  the  foregoing  affidavit  of  Ben 
Cody  was  read  over  to  him  in  the  presence  of  John  E.  Graham  and  R.  E.  Davidson, 
and  by  me  explained  to  him  before  signing,  and  that  he  signed  the  same  in  this  pres- 
ence and  swore  to  me  before  said  parties  that  the  contents  thereof  was  true. 

In  testimony  whereof  I  have  hereunto  set  my  hand  and  official  seal  at  Ocala  on  this 
the  11th  day  of  April,  1890. 

[SEAL.]  S.  S.  Burlingame, 

Notary  Public. 
We,  John  C.  Graham,  E.  G,  Smith,  John  H.  Welsh,  D".  G.  Eichelberger,  and  G.  N. 
Saussy,  certify  that  we  are,  each  one  of  us,  personally  acquainted  with  Ben  Cody,  a 
colored  man,  Avho  signed  the  foregoing  atfidavit,  and  state  we  have  known  him  for 
several  years  and  know  him  to  be  an  honest,  truthful,  upright,  and  good  citizen. 

John  C.  Graham. 
E.  G.  Smith, 
John  H.  Welsh. 
D.  G.  Eichelberger. 
G.  N.  Saussy. 
Signed  in  the  presence  of  us  as  witnesaeSt 
R.  E.  Davidson. 
S.  S.  Burlingame. 


GOODRICH   VS.    BULLOCK.  627 

Personally  came  R.  E.  Davidson  and  S.  S.  Burllngame,  who  being  sworn,  s.iy  tboy 
saw  John  C.  Graham,  E.  G.  Smith,  John  H.  Welsh,  D.  G.  Eichelberger,  -ami  G.  N. 
Saussy  sign  the  above  certificate  of  character  of  Ben  Cody,  and  we  witnessed  their 
signatures. 

R.  E.  Davidson. 

S.   S.    BUUMNGAME. 

Sworn  to  and  subscribed  before  me  this  11th  day  of  April,  1890. 

[seal.]  *  Louis  Fox, 

Notary  Puhlic. 
State  of  Florida,  Marion  County : 

I,  S.  S.  Burlingame,  a  notary  public  for  Marion  County,  do  certify  that  the  above- 
named  John  C.  Graham  and  E.  G.  Smith  are  both  colored  men,  and  John  H.  Welsh  is  a 
white  man,  all  of  whom  are  prominent  leading  Republicans  in  this  county ;  that  D.  G. 
Eichelberger  and  G.  N.  Saussy  are  white  men  and  Democrats  in  this  county ;  that 
all  of  said  persons  are  personally  known  to  the  undersigned,  and  all  of  them  aro 
good,  worthy,  and  highly-respected  citizens  of  the  county  ;  that  during  the  reading 
of  the  foregoing  affidavits  in  the  front  of  the  store  that  fronts  the  public  square  of 
the  city  of  Ocala  these  gentlemen,  E.  G.  Smith,  John  C.  Graham,  and  John  H.  Welsh, 
were  called  to  witness  the  reading  and  signing  thereof. 

In  testimony  whereof  I  set  my  hand  and  official  seal  at  Ocala,  on  this  the  11th 
day  of  April,  A.  D.  1890. 

[seal.]  S.  S.  Burlingame, 

Notary  Puhlic. 


Affidavit  of  T.  E.  Pritchett. 

State  of  Florida,  County  of  Marion  : 

Personally  came  T.  E.  Pritchett,  who,  being  duly  sworn,  says  that  during  a  part  of 
the  time  for  the  registration  of  electors  in  Marion  County,  Fla.,  for  the  year  1888, 
ho  was  in  the  office  of  E.  M.  Gregg,  supervisor  of  registration  for  Marion  County, 
Fla.,  as  his  deputy.  Affiant  further  states  that  he  is  not  acquainted  with  one 
Jesse  Reddick.  Affiant  states  that  he  has  read  the  testimony  of  said  Jesse  Reddick 
as  the  same  appears  on  page  893  of  the  record  in  the  contested-election  case  of  F.  S. 
Goodrich  against  R.  Bullock.  Affiant  further  states  that  the  conversation  as  reported 
in  said  record  as  given  by  Jesse  Reddick  never  took  place  at  any  time  in  the  office  of 
the  superv  isor  of  registration  or  anywhere  else,  to  his  knowledge,  between  E.  M.  Gregg 
and  said  Reddick  within  the  hearing  of  this  affiant  that  he  never  heard  said  conver- 
sation or  any  other  conversation  of  any  character  whatsoever  between  said  Reddick 
and  Gregg.  Affiant  states  that  on  the  22d  day  of  September,  1888,  he  left  the  said 
registration  office  and  during  the  month  of  October,  1888,  and  at  least  a  month  before 
the  election  of  November  6,  1888,  he  left  the  city  of  Ocala  in  said  Marion  County 
and  went  on  the  Ooklawaha  River,  where  he  resided  continuously  ever  since  and  did 
not  return  to  the  said  city  of  Ocala  until  the  month  of  February,  1890 

T.  E.  Pritchett. 

Sworn  to  and  subscribed  before  rae  this  12th  day  of  April,  A.  D.  1890. 
[seal.]  S.  S.  Burlingame, 

Notary  Public. 


Affidavit  ofB.  A.  Miller. 

State  of  Florida,  Marion  County: 

Before  me,  tha  undersigned  authority,  personally  came  Dan  A.  Miller,  who,  being 
duly  sworn,  says  upon  oath :  That  he  is  clerk  of  the  circuit  court  in  and  for  the 
county  of  Marion ;  that  he  is  personally  acquainted  with  one  Jesse  Reddick ;  that 

some  time  during ,  1889,  he  heard  Jesse  Reddick  say  in  the  most  positive  terms 

that  he  never  gave  any  testimony  whatever  in  the  contested-election  case  of  F.  S. 
Goodrich,  contestant,  against  Robert  Bullock,  contestee;  that  he  never  knew  that 
said  testimony  was  reported  until  it  was  shown  to  him  by  General  Bullock.  And 
affiant  farther  states  that  he  heard  the  said  Jesse  Reddick  say  that  he  would,  and  in- 
tended to  give  General  Bullock  an  affidavit  denying  ever  having  given  such  testi- 
mony as  was  reported  by  D.  M.  Rodeffer.  Affiant  further  states  that  said  conversa- 
tion between  General  Bullock  and  Jesse  Reddick  took  place  in  his  office  in  Ocala,  and 


628  GOODRICH   VS.    BULLOCK. 

at  the  time  thereof  there  was  present  his  deputy  clerk,  S.  Tt  Sistrunk;  that  said  con- 
versation was  conducted  pleasantly  and  agreeably,  and  with  no  manifestation  of  feel- 
ing on  the  i)art  of  General  Bullock ;  that  said  testimony  was  simply  read  to  Reddick, 
and  he  made  the  statements,  as  hereinbefore  stated,  in  a  quiet,  calm,  and  deliberate 
manner. 

D.   A.   MiLXEB. 

Sworn  to  and  suhscribed  before  me  this  12th  day  of  April,  1890. 

fSBAL.]  Richard  McConathy, 

County  Jtidge. 


Affidavit  of  Henry  W.  Chandler,  colored  man  and  candidate  for  slate  secretary,  corroborat- 
ing Gregg,  registration  officer. 

State  of  Florida,  County  of  Marion  : 

Before  me  personally  came  Henry  W.  Chandler,  who,  being  by  me  duly  sworn,  says 
upon  his  oath  that  he  was  the  Republican  candidate  for  secretary  of  state  of  the 
State  of  Florida,  in  the  election  held  on  the  6th  day  of  November,  1888,  at  which 
election  a  Representative  to  the  Fifty-first  Congress  of  the  United  States  was  voted 
for.  That  prior  to  said  election  he  and  David  S.  Williams,  who  was  a  candidate  for 
the  office  of  county  judge  of  said  county  at  said  election,  were  accorded  the  courtesies 
of  and  had  seats  in  the  office  of  the  supervisor  of  registration  for  said  county  while 
voters  were  being  registered. 

Henry  W.  Chandler. 

Sworn  to  before  me  this  the  8tl\  day  of  April,  1890,  and  in  my  presence  subscribed 
to  by  the  above-named  Henry  W.  Chandler. 
[.seal.]  Louis  Fox, 

Notary  Public. 


Affidavit  of  Sol  Benjamin,  showing  the  conduct  of  Anderson  and  Rodiffer  in  going  together 
to  get  the  colored  man  Reddick  to  fool  him  into  making  a  false  affidavit.  Contrast  this 
with  my  method. 

State  of  Florida,  Marion  County: 

Personally  came  Sol  Benjamin,  who,  being  sworn,  says  that  on  Friday  even- 
ing, April  4,  1890,  late  in  the  evening,  a  carriage  came  down  to  the  East  Florida  Ice 
Manufacturing  Company's  building,  of  which  company  affiant  is  the  president,  and 
the  driver  announced  that  Mr.  H.  L.  Anderson  had  sent  him  for  Jesse  Reddick,  a  col- 
ored man,  in  the  employ  of  said  company;  that  affiant  sent  Mr.  Anderson  word  that 
Reddick  was  at  work  and  could  not  leave  then.  Later,  on  the  same  evening,  Mr.  H. 
L.  Anderson  and  D.  M.  Rodiffer  came  in  person,  and  after  making  some  little  apology 
to  affiant  for  not  requesting  him  to  allow  said  Reddick  to  leave,  Mr.  Anderson  then 
had  some  private  interview  with  Jesse  Reddick ;  that  next  morning  affiant  asked 
said  Reddick  what  Mr.  Anderson  wanted  with  him;  that  said  Reddick  replied  he 
wanted  him  to  sign  an  affidavit  about  him  (Reddick)  seeing  a  pistol  lying  on  the 
table  of  the  supervisor  of  registration  for  Marion  County,  and  that  he  signed  it,  and 
that  was  all  of  the  contents  of  said  affidavit ;  that  said  Reddick  has  i-epeatedly  made 
same  statement  in  the  presence  of  many  persons,  and.  continues  up  to  this  time  to 
make  the  same  statement. 

Affiant  states  that  at  one  time,  to  wit,  April  5,  1890,  when  Reddick  made  the  state- 
ment as  to  contents  of  the  affidavit  he  made  for  H.  L.  Anderson,  on  April  4,  1890, 
before  S.  S.  Burlingame,  there  was  present  Mr.  R.  B.  Bullock,  secretary  of  the  With- 
lacoochie  Phosphate  Company ;  W.  A.  Smith,  engineer  at  the  East  Florida  Ice  Man- 
ufacturing Company,  and  this  affiant;  and  he  has  made  the  same  statement  on  a  great 
many  other  occa«iona,  in  the  presence  of  different  persons,  both  white  and  colored. 

Sol  Benjamin. 
W.  A.  Smith. 

Sworn  to  and  subscribed  before  me  on  this  17th  day  of  April,  A.  D.  1890. 
^SEAL.]  Wm.  Fox, 

^Qtarij  ruhlio, 


GOODRICH   VS.   BULLOCK.  G29 

Personally  came  R.  B.  Bollock  and  W.  A.  Smith,  persons  mentioned  in  above  affi- 
davit, and  all  of  them  to  me  personally  known,  who,  being  each  duly  sworn,  say  they 
have  read  said  affidavit  of  Sol  Benjamin,  and  say  that  so  much  thereof  as  states  that 
they  were  present  and  heard  Jesse  Reddick  state  the  contents  of  the  affidavit  made 
by  him  on  April  4,  1890,  before  S.  S.  Burlingame,  is  true,  and  they  each  swear  they 
were  present  and  heard  same  statement  of  said  Jesse  Reddick,  and  the  same  was  made 
as  set  forth  in  said  affidavit. 

R.  B.  Bullock. 

Sworn  to  and  sabscribed  before  me  on  this  April  17th,  1890. 

[SEAL.]  Wm.  Fox, 

Notary  Public  State  of  Florida. 


Affidavit  of  S.  S.  Burlingame,  showing  that  he  only  administered  the  oath  taken  by  Reddick, 
loithout  reading  the  same  to  him,  as  he  said  it  had  been  read  to  him  by  Anderson  and  only 
related  to  a  pistol. 

State  of  Florida,  Marion  County: 

Personally  came  S.  S.  Burlingame,  who,  being  duly  sworn,  says  that  he  is  a  citizen 
of  Ocala,  Marion  County,  Fla.,  and  the  clerk  of  the  city  of  Ocala,  notary  public,  and 
also  a  clerk  in  the  dry  goods  and  clothing  store  of  Benjamin  &  Fox;  that  he  is  a 
northern  man  by  birth ;  that  he  has  resided  in  Ocala  since  May,  A.  D.  1880 ;  that  on 
Friday,  April  4,  1890,  one  Jesse  Reddick,  a  negro  man,  who  is  well  known  to  affiant, 
and  who  is  in  the  employ  of  the  East  Florida  Ice  Manufacturing  Company,  did,  be- 
tween the  hours  of  6  and  7  o'clock  p.  m.  on  said  day,  produce  to  him  a  paper- writing, 
to  be  sworn  to  uy  said  Reddick  before  the  affiant;  that  affiant  asked  said  Jesse  Red- 
dick if  said  paper-writing  had  been  read  to  him ;  whereupon  said  Reddick  answered 
in  the  affirmative,  and  said  that  Mr.  H.  L.  Anderson  had  read  the  same  to  him;  that 
this  affiant,  believing  that  said  Reddick  was  fully  aware  of  the  contents  of  said  paper- 
writing,  asked  said  Reddick  if  he  did  swear  that  the  contents  thereof  were  true, 
whereupon  said  Reddick  said  that  he  did ;  and  that  this  affiant  then  administered  the 
oath  to  him  on  the  faith  of  this  statement,  and  attached  his  signature  and  seal  of 
office  thereto;  that  this  affiant  did  not  read  said  affidavit  to  Reddick,  nor  did  he 
read  it  himself,  nor  was  he,  this  affiant,  aware  of  the  contents  of  said  paper-writing, 
signed  by  said  Reddick  on  April  4,  1890;  that  the  said  affidavit  of  said  Reddick  was 
taken  by  me  in  the  office  of  H.  L.  Anderson,  whither  I  was  called  by  him  for  that 
purpose,  and  in  the  presence  of  H.  L.  Anderson  and  D.  M.  Roddejffer.  And  affiant 
further  states  that  said  paper- writing  was  not  read  in  his  presence  by  any  other  per- 
son, and  that  he  does  not  know  the  contents  thereof. 

S.  S,  Burlingame. 

Sworn  to  and  subscribed  before  me  on  this  12th  day  of  April,  A.  D.  1890. 
[Seal.]  Louis  Fox, 

Notary  Public. 


JAMES  H.  McGINNIS  vs.  JOHN  D.  ALDERSON. 

THIRD  WEST  VIRGINIA. 


The  governor  of  West  Virginia  declared  the  result  and  issued  the 
certificate  to  Alderson  on  the  basis  of  the  returns  from  all  the  counties 
except  Kanawha,  omitting  the  latter  return  on  account  of  legal 
proceedings  in  which  it  had  become  involved.  McGinnis  claimed  to 
be  entitled  to  the  certificate  in  the  first  instance,  he  being  elected  on 
the  face  of  the  returns  including  that  from  Kanawha  County,  and 
also  to  be  elected  if  all  illegal  votes  cast  on  both  sides  be  deducted. 
Alderson  clpimed  that  the  return  from  Kanawha  County  was  properly 
omitted  by  the  governor;  that  if  said  return  were  correctly  made  out, 
including  the  results  of  recounts  legally  had,  it  would  show  that  he 
was  elected  on  the  face  of  all  the  returns,  and  that  his  returned  major- 
ity would  be  still  further  increased  by  deducting  from  both  sides  the 
illegal  votes  cast  for  them  respectively.  The  committee  in  general  sus- 
tain the  claims  of  McGinnis,  as  above  stated,  the  minority  those  of 
Alderson.    The  case  was  never  reached  by  the  House. 

(1)  Certificate  of  election.    Force  of. 

"  A  certificate  of  election  showing  upon  its  face  that  nearly  8,000  votes 
were  wholly  ignored  in  the  count  can  have  no  binding  force  and  effect 
in  a  contest  of  this  character.  *  #  *  #  #  When  his  title  is 
assailed  in  a  direct  proceeding  by  way  of  a  contest,  we  think  that  a 
certificate  showing  the  above  facts  gives  the  contestee  no  superior 
standing  over  the  contestant  as  to  burden  of  proof.  For  the  purposes 
of  the  contest  a  certificate  which,  on  its  face,  shows  that  a  large  vote  was 
wholly  ignored,  and  giving  no  data  from  which  the  true  results  could 
be  ascertained,  ought  not  to  be  considered  as  binding  upon  anybody." 

(2)  Borden  of  proof.     When  contestant  elected  -on  face  of  returns. 
When  it  is  shown  that  the  contestant  was  elected  on  the  face  of  the 

returns,  the  burden  is  cast  upon  the  contestee  to  overcome  the  prima 
facie  right  which  the  returns  give  to  the  contestant. 

(3)  Recount. 

In  order  to  justify  a  recount  it  ought  to  appear  that  the  statutory 
requirements  have  been  complied  with,  "  or  clearly  shown  that  the  fail- 
ure to  comply  therewith  has  resulted  in  no  injury.  If  proper  care  is 
not  taken  to  so  preserve  the  ballots  that  they  may  not  be  changed  they 

631 


632  m'ginnis  vs.  alderson. 

will  always  be  the  subject  of  a  natural  suspicion,  and  when  a  material 
difference  appears  between  the  original  count  and  the  recount  the 
weight  to  be  given  to  the  recount  must  depend  wholly  upon  the  meth- 
ods used  in  preserving  the  ballots  free  from  suspicion  or  opportunity 
to  do  wrong.  In  a  conflict  between  the  first  and  second  count  it  is 
evident  that  the  one  or  the  other  does  not  show  the  true  result. 

If  every  opportunity  to  change  the  ballots  has  been  prevented,  and 
if  the  law  in  relation  to  a  recount  has  been  complied  with,  the  recount 
becomes  entitled  to  the  greater  credit  and  should  prevail.  But  if,  on 
the  other  hand,  the  ballots  have  been  so  kept  that  they  may  be  readily 
changed,  our  observation  upon  this  committee  would  hardly  justify  us 
in  indulging  in  the  conclusion  presumptive  that  no  one  had  been  found 
wicked  enough  to  make  the  change." 


HEPOHT. 


July  23, 1890. — Mr.  Lacey,  from  the  Committee  on  Elections,  submit- 
ted tlie  folio wiDg  report: 

As  in  the  case  of  Smith  v.  Jackson  from  West  Virginia,  decided  b}' 
this  committee  and  their  findings  approved  in  the  present  Congress,  the 
first  important  question  to  determine  is  as  to  whether  the  contestee  or 
contestant  was  entitled  to  the  certificate  of  election. 


THE  PRIMA  FACIE  CASE. 

In  the  firesent  case  the  returns  certified  to  the  governor  in  due  form 
of  law  as  to  all  the  counties  except  Kanawha  are  as  follows : 

Third  Congressional  district. 


Connties. 

John  D. 
Alderson. 

James  H. 
McGinnis. 

C.W. 
Henson. 

W.D. 
Sanford. 

Frank 
Burt. 

J.  H. 

Higgins. 

1,508 
500 
409 

1,371 
888 
742 

416 
565 
583 
1,406 
842 
512 

3 
13 
1 

4 

1 

Kaleigh 

Kanawba 

1,854 
415 

1,101 
.      2, 072 

1,324 

1,356 
666 
898 
840 

2,685 

463 

690 

1,394 

1,225 

1.277 

276 

580 

1,717 

19 

150 
4 
11 

4 

Clav 

12 

5 

23 

10 

Monroe 

Summers 

Webster 

Pocahontas 

6 

18 

. 

Upshur ......... 

5 

Total 

15,944 

14,631 

110 

174 

4 

1 

The  foregoing  statement  is  copied  from  the  executive  order  of  the 
governor  of  West  Virginia,  and  it  will  be  observed  that  he  treats  the 
county  of  Kanawha  as  a  blank. 

The  reason  for  thus  ignoring  the  county  of  Kanawha  is  set  out  in  the 
executive  order  of  his  excellency,  the  governor,  in  the  following  lan- 
guage : 

Executive  Department,  February  28,  1889. 

The  governor  having  received  from  the  comruissionera  of  the  county  conrts  of  the 
several  counties  of  the  Third  and  Fourth  Congressional  districts  of  the  State  of  West 
Virginia,  excepting  the  county  of  Kanawha,  certificates  of  the  result  of  the  vote  cast 
at  the  election  held  on  the  Tuesday  next  after  the  first  Monday  in  November,  1888,  for 
Representative  in  the  Congress  of  the  United  States,  and  it  being  apparent,  for  the 
reasons  hereinafter  stated,  that  the  returns  from  Kanawha  County  can  not  now  be 

633 


634  m'ginnis  vs.  alderson. 

made  before  the  beginning  of  the  Congressional  term  on  March  4,  1889,  this  day  pro- 
ceeded to  ascertain  and  declare  the  result  of  said  election  in  said  Congressional  dis- 
tricts. 

Tlie  county  commissioners  declared  the  result  of  the  election  in  Kanawha  County 
December  15,  1888.  The  certificate  was  mailed  in  this  city  on  the  17th  of  said  month, 
and  received  in  this  office  late  in  the  afiei-noon. 

On  the  same  day  a  writ  oi  certiorari  was  awarded  by  the  circuit  court  of  Kanawha 
County  on  the  petition  of  John  D.  Alderaou,  who  claimed  to  be  elected  to  said  oiBce, 
against  the  said  commissioners,  and  against  James  H.  I'lcGinnis,  who  also  claimed  to 
be  elected  to  said  office.  The  order  awarding  the  certiorari  provided  for  a  supersedeas 
to  the  judgment  and  decision  of  said  commissioners  upon  the  execution  of  bond,  as 
required  by  statute.  The  bond  was  forthwith  executed,  and  said  judgment  and  decis- 
ion suspended.  A  certified  copy  of  the  record  in  the  certiorari  proceedings  shows 
that  said  commissioners,  in  declaring  the  result  of  the  election  in  said  county,  ex- 
cluded from  the  recount,  had,  under  the  statute,  on  the  demand  of  said  Aldersou,  a 
sufficient  number  of  ballots  Ln  his  favor  to  have  secured  his  election  to  said  office. 

I  have  time  and  again  personally  urged  counsel  on  both  sides  of  this  controversy  to 
insist  upon  a  prompt  decision  by  the  circuit  court,  in  order  that  a  final  conclusion 
might  be  reached  before  the  4th  of  March  next,  the  beginning  of  the  Congressional 
term.  I  can  see  no  reason  why  it  should  not  have  been  done.  The  circuit  court 
aforesaid  on  the  23d  inst.  entered  judgment  reversing  the  entire  proceedings  and  find- 
ing of  said  commissioners,  and  remanding  the  cause.  Upon  inquiry,  I  find  that  no 
steps  have  yet  been  taken  for  the  reassembling  of  said  commissioners  to  ascertain  the 
election  result,  and  it  is  evident  that  such  result  can  not  now  be  ascertained  before 
the  beginning  of  the  Congressional  term. 

Therefore,  I  believe  it  to  be  my  duty  to  certify  an  election  on  the  returns  now  in  this 
office. 

E.  W.  Wilson. 

By  the  governor : 

Henry  S.  Walker, 

Secretary  of  State. 


It  thus  appears  affirmatively  from  the  record  before  the  committee 
that  because  of  the  legal  proceedings  referred  to  above  the  governor 
certified  the  "  election  on  the  returns  now  in  this  office  "  on  the  28th  of 
February,  1889,  although  the  governor  had  ineffectually  urged  "6of/t 
sides''  to  secure  a  prompt  decision  from  the  courts. 

The  fact  that  the  contestee,  Mr.  Alderson,  had  attempted  to  super- 
sede the  returns  by  the  legal  proceedings  gave  him  no  right  to  have 
the  certificate,  based  upon  a  count  of  the  district,  omitting  the  most 
important  county  therein.  The  county  of  Kanawha  cast  a  vote  larger 
than  the  average  of  three  of  the  other  counties  in  the  district.  That 
county  cast  an  undisputed  majoritj'  of  over  1,300  in  favor  of  the  con- 
testant. 

A  certificate  of  election  showing  upon  its  face  that  nearly  8,000  votes 
were  wholly  ignored  in  the  count  can  have  no  binding  force  and  effect 
in  a  contest  of  this  character.  It  is  true  that  it  has  been  sufficient  to 
entitle  tbe  contestee  to  sit  in  the  House,  to  take  part  in  its  organization, 
and  to  i)erform  all  the  duties  of  a  member  of  Congress  whether  elected 
or  not.  But  when  his  title  is  assailed  in  a  direct  proceeding  by  way  of 
a  contest,  we  think  that  a  certificate  showing  the  above  facts  gives  the 
contestee  no  superior  standing  over  the  contestant  as  to  burden  of 
proof.  For  the  purposes  of  the  contest  a  certificate  which,  on  its  face, 
shows  that  a  large  vote  for  the  contestee  was  wholly  ignored,  and  giv- 
ing no  data  from  which  the  true  results  could  be  ascertained,  ought  not 
to  be  considered  as  binding  upon  anybody. 

As  the  governor  did  not  decide  the  result  and  issue  the  certificate 
upon  the  returns  from  the  whole  district,  the  first  duty  devolving  upon 
the  committee  was  to  take  the  returns  and  make  a  statement  of  the 
same. 


m'ginnis  vs.  alderson.  635 

The  corrected  returns,  so  far  as  certified  by  the  governor,  showed  the 
following  result : 

For  Alderson 15,944 

ForMcGinnJs 14,631 

Plurality  for  Alderson 1,313 

Returns  from  Kanawha  County : 

ForMcGinnis 4,658 

For  Alderson 3.329 

Majority  in  Kanawha  County  for  McGinn  is 1, 329 

The  original  returns  gave  McGinnis  1,344  majority  in  this  county  (2d 
Rec,  108),  but  this  excluded  Coalburgh  which  we  will  show  should  not  be 
excluded. 

The  net  majority  for  McGinnis  in  the  district  is  16. 

Uponthefaceof  the  returns,  McGinnis  was  entitled  to  the  certificate 
by  a  majority  of  16. 

In  the  county  of  Boone  there  was  an  error  in  the  footing  or  else  an 
accidental  transposition  of  figures. 

The  figures  certified  to  the  governor  for  contestant  were  512  instead  of 
521,  making  a  difference  of  9  votes.  Three  witnesses  show  that  this  error 
occurred  (Sec,  34,  35).  Leftwich,  McNeeley,  and  Smoot  all  testify  as  to 
the  error.    Their  evidence  is  confirmed  by  the  tally -sheet,  page  36. 

No  attempt  is  made  to  contradict  this  tally-sheet  or  the  evidence  of 
these  witnesses.  We  do  not  think  that  a  clerical  error  of  this  charac- 
ter ought  to  stand  uncorrected  where  ^t  is  practically  undisputed.  It 
is  claimed  that  the  evidence  showing  this  fact  should  not  be  considered 
because  the  notice  to  take  depositions  did  not  give  the  names  of  the 
witnesses.  But  J.  B.  Hayger  appeared  as  attorney  for  Mr.  Alderson  at 
the  taking  of  this  evidence;  and  besides,  no  objection  was  made  to  the 
printing  of  this  evidence  at  the  time  that  it  was  opened  by  the  clerk. 
(Lowry  v.  White,  50th  Cong.,  and  Featherstone  v.  Gate,  51st  Gong.)  By 
correcting  this  clerical  error  in  the  returns  it  appears  that  contestant 
was  elected  by  a  plurality  of  25  over  the  contestee  on  the  face  of  the 
returns.  If  these  returns  remain  unimpeached  the  tables  are  turned 
and  the  burden  is  cast  upon  the  contestee  to  overcome  the  prima 
facie  right  which  the  returns  give  to  the  contestant. 

To  meet  this  question  the  contestee  asserts  that  under  the  laws  of 
West  Virginia  he  was  entitled  to  a  recount  of  the  ballots,  and  that  upon 
such  recount  in  Kanawha  Gounty  this  result  was  changed  and  that  the 
contestee  gained  12  votes  and  the  contestant  lost  20,  making  a  change 
of  32  votes,  which  would  give  him  a  majority  of  7  upon  the  basis  above 
set  out. 

THE  RECOUNT. 

The  recount  in  Kanawha  Gounty  showed  a  change  of  9  votes  in  Alum 
Greek  precinct,  and  25  votes  in  Gharleston  precinct. 

In  the  West  Virginia  election  cases  in  the  present  Gongress,  and  in 
the  famous  case  in  the  gubernatorial  contest  between  Fleming  and 
Goff,  we  have  had  striking  illustrations  of  the  dangers  of  a  recount  of 
the  ballots,  where  a  change  of  a  few  tickets  may  affect  the  result.  The 
law  of  West  Virginia,  whilst  it  provides  for  such  recount,  attempts  to 
throw  around  the  recount  such  elements  of  safety  as  will  prevent  a 
fraudulent  change  of  the  ballots.  Such  recount  is  always  viewed  with 
suspicion  and  is  full  of  danger. 


636  m'ginnis  vs.  alderson. 

The  law  of  West  Virginia  is  as  follows : 

They  shall,  upon  the  devnaiul  of  any  candidate  voted  for  at  snch  election,  open  and 
examine  any  one  or  more  of  the  sealed  packages  of  ballots  and  recount  the  same,  hut 
in  such  case  they  shall  seal  up  the  same  again,  along  with  the  original  envelope,  in 
another  envelope,  and  the  clerk  of  the  county  court  shall  write  his  name  across  the 
place  or  places  where  it  is  sealed,  and  indorse  on  the  outside :  Ballots  of  the  election 
held  at ,  the  district  of and  county  of •,  etc. 

The  law  also  provides  that  the  original  packages  shall  be  sealed  up 
at  the  place  of  voting,  as  follows : 

When  the  said  certificates  are  signed,  the  ballots  shall  be  inclosed  by  the  commis- 
sioners in  an  envelope,  which  they  shall  seal  up,  and  write  their  names  across  the 
place  or  places  where  it  is  sealed,  and  indorse  on  the  outside  of  the  said  envelope  as 

follows :  "  Ballots  of  the  election  held  at ,  in  the  district  of ,  and  county 

of ,  the day  of ,"  etc. 

In  order  to  justify  a  recount  it  ought  to  appear  that  these  require- 
ments have  been  complied  with,  or  clearly  shown  that  the  failure  to 
comply  therewith  has  resulted  in  no  injury.  We  are  constrained  to 
find  that  in  the  present  case  there  was  not  that  care  of  the  ballots  con- 
templated by  this  statute,  nor  such  care  of  the  same  as  would  justify 
us  in  overturning  the  count  made  at  the  time  by  the  judges  of  the 
election. 

The  ballots  of  Alum  Creek  precinct  were  put  in  a  paper  i^ackage 
and  the  package  placed  in  a  bag  and  carried  to  the  court-house  where 
the  bag  was  thrown  up  over  a  storm-door  at  the  clerk's  office. 

When  the  recount  was  commenced  this  package  was  found  broken 
open,  or  else  it  had  never  been  sealed. 

J.  A.  Jones,  witness  for  contestee,  says  that  when  the  ballots  were 
laid  before  the  court  for  recount  the  Alum  Creek  package  was  un- 
sealed, and  it  had  the  appearance  of  not  having  been  sealed  at  any 
time,  though  it  showed  that  an  effort  had  been  made  to  seal  it.  (Rec, 
159.) 

From  Thursday  after  the  election  until  the  following  Monday  this 
package  was  lying  unsealed  in  a  bag  on  top  of  the  storm  door.  It  had 
been  sealed  with  mucilage,  which  did  not  stick.  (Rec,  193.)  About 
half  the  returns  came  in  wholly  unsealed,  with  a  string  tied  around  them. 
(Rec,  192.) 

Goshorn  and  Quarrier  show  clearly  that  the  law  was  not  complied 
with  by  sealing  up  the  returns. 

This  is  not  a  mere  unimportant  requirement.  The  sealing  up  and 
proper  care  of  the  ballots  is  an  essential  requisite  to  an  honest  and  cor- 
rect recount  of  the  ballots. 

If  proper  care  is  not  taken  to  so  preserve  the  ballots  that  they  may 
not  be  changed  they  will  always  be  the  subject  of  a  natural  suspicion, 
and  when  a  material  difference  appears  between  the  original  count  and 
the  recount  the  weight  to  be  given  to  the  recount  must  depend  wholly 
upon  the  methods  used  in  i>reserving  the  ballots  tree  from  suspicion  or 
opportunity  to  do  wrong.  In  a  conflict  between  the  first  and  second 
count  it  is  evident  that  the  one  or  the  other  does  not  show  the  true 
result. 

If  every  opportunity  to  change  the  ballots  has  been  prevented,  and 
if  the  law  in  relation  to  a  recount  has  been  complied  with,  the  recount 
becomes  entitled  to  the  greater  credit  and  should  prevail.  But  if,  on 
the  other  hand,  the  ballots  have  been  so  kept  tbat  they  may  be  readily 
changed,  our  observation  upon  this  committee  would  hardly  justify  us 
in  indulging  in  the  conclusion  presumptive  that  no  one  had  been  found 
wicked  enough  to  make  the  change. 

Where  party  spirit  runs  high,  and  a  Congressional  election  depends 


m'ginnis  vs.  alderson.  637 

npon  the  substitution  of  a  few  votes,  and  opportunity  for  the  change  is 
afforded,  and  the  recount  of  two  precincts  like  Alum  Creek  and  Court- 
House  show  an  error  of  32,  we  must  give  the  greater  credit  to  the  first 
count. 

At  Alum  Creek  3  votes  more  for  Alderson  were  found  on  the  recount 
and  6  votes  were  counted  for  McGinuis  less  than  the  judges  of  the  pre- 
cinct counted  for  him.  Such  an  error  in  a  vote  of  194  is  very  improba- 
ble. In  Court-House  precinct  Alderson  gained  12  and  McGinnis  lost 
13.  McGinnis  has  taken  testimony  to  show  specifically  143  votes  for 
him  instead  of  the  138  shown  by  the  recount,  thus  showing  the  recount 
to  be  wrong.  This  evidence  shows  clearly  that  the  recount  was  erro- 
neous. But  aside  trom  all  questions  of  probability  or  improbability,  we 
Ihink  the  only  safe  rule  of  law  in  relation  to  a  recount  of  the  ballots  is 
to  require  that  the  ballots  should  be  preserved  in  the  manner  pointed 
out  by  law,  or  clearly  shown  not  to  have  been  tampered  with,  in  order 
to  render  a  recount  of  any  validity.  The  same  statute  which  provides 
for  a  recount  also  provides  a  method  to  make  such  recount  worthy  of 
credit. 

TUe  ballots  at  Charleston  were  placed  in  a  cracker-box,  and  nailed  up, 
sealed,  and  indorsed.  The  box  showed  chisel  marks  in  the  bottom 
where  it  had  been  opened.  (Eec.  76).  The  change  of  25  votes  in  the 
count  in  this  box  can  be  accounted  for  in  two  ways.  The  first  count  was 
inaccurate,  or  the  ballots  were  changed.  The  county  commissioners 
were  notified  that  there  was  something  wrong  about  the  recount,  and  re- 
fused to  certify  it,  and  legal  proceedings  were  instituted  to  compel  them 
to  adopt  the  recount,  which  they  declined  to  do,  and  while  these  pro- 
ceedings were  pending  the  executive  cut  the  Gordian  knot  by  leaving 
Kanawha  out  of  the  count  altogether,  and  thus  giving  to  the  contestee 
a  majority  of  over  1,300  votes.  One  Montague  was  in  charge  of  the 
clerk's  office  a  part  of  the  time.  Mr.  Montague  was  an  intemperate 
man  and  had  been  on  a  spree.  He  got  ten  cents  of  the  deputy  clerk  to 
get  some  whisky  with  to  steady  his  nerves  while  he  made  some  copies 
of  some  papers. 

One  Forsythe  testifies  to  seeing  Montague  apparently  tampering 
with  the  ballots.  (Rec.  67.)  Forsythe's  character  and  evidence  are 
bitterly  assailed,  and  it  is  claimed  that  he  could  not  have  seen  Monta- 
gue on  the  date  at  which  he  claims  to  have  seen  him  in  the  clerk's 
office,  but  it  clearly  appears,  at  least,  that  Montague  had  ample  oppor- 
tunity to  change  the  ballots.  Montague's  character  and  habits  are 
shown  by  one  of  contestee's  witnesses,  Mr.  Quarrier.     (Kec.  208.) : 

Q.  17.  Please  state  what  part  of  the  week  on  which  the  election  was  held  was  the 
said  Montague  employed  in  or  about  said  office  ? 

A.  He  worked  on  Monday  .ind  Tuesday  the  day  of  the  election,  and  came  back 
to  the  office  on  Saturday  evening  at  about  3  o'clock  and  asked  for  his  two  days' 
pay.  I  told  him  that  I  wouhl  not  pay  him  unless  he  went  to  work  to  make  a  copy 
of  a  deed  for  Wm.  S.  Ed  wards,  who  desired  the  same  to  be  copied  by  nine  o'clock 
that  night  in  order  that  he  might  proceed  to  New  York  City  to  raise  money  for  the 
Paint  Creek  Railroad  Comjtany.  Montague  said  that  he  was  in  no  condition  to 
make  the  copy,  and  asked  nie  to  send  for  Mr.  A.  P.  Fry  to  make  the  same.  I  told 
him  that  if  he  did  not  make  the  copy  I  would  not  pay  him  for  the  two  days'  work  ; 
he  was  at  the  time  very  tremulous,  having  been  on  a  spree.  It  was  a  very  long 
deed,  the  copy  of  which  the  fee  amounted  to  four  dollars.  He  began  working  iu 
a  few  minutes  in  the  back  room  ;  after  working  some  half  hour  he  came  to  the  frout 
room,  and  said  it  was  impossible  for  him  to  proceed  with  the  work  on  account  of 
his  nervousness,  and  asked  uie  to  get  some  one  else  to  do  the  work  ;  I  replied  that 
if  you  do  not  make  that  copy  I  will  not  jtay  you  a  cent,  and  gave  him  ten  cents  to 
go  and  get  a  drink  of  whisky  with  ;  he  then  returned  and  went  to  work  again.  I 
staid  in  the  office  until  about  dark,  locked  the  frout  door,  and  left  Montague  there- 
in. I  fixed  the  shutters  on  the  front  side  of  the  office  so  that  any  person  could  look 
is  the  pffice  wUere  he  y/m  working,  with  iostructione  to  turn  to  jiHow  uo  one  to  cow« 


638  m'ginnis  vs.  alderson. 

into  the  oflSce  except  the  said  Wm.  S.  Edwards;,  who  said  to  me  that  he  would  be 
down  to  the  office  about  dark  to  get  his  copy.  1  went  to  supper  and  returned  in 
about  40  minutes,  and  saw  the  shutter  ajar  as  J  b-*il  left  it,  and  invited  John  T.  Dud- 
ding  to  go  in  the  office  with  me.  Montague  showed  me  tlie  amount  of  work  he  did 
since  I  left,  and  requested  that  I  would  gir«»hiiu  money  to  get  his  supper,  and  said 
that  Edwards  kad  not  been  to  the  office.  J  ;jave  him  ten  cents  to  get  a  drink  with  ; 
he  finished  the  copy  about  half  past  eight  o'clock  j  I  then  locked  up  the  office  and 
went  home. 

Forsythe  and  other  Eepublicana  were  engaged  in  watching  the  clerk's 
office,  fearing  that  the  ballots  might  be  tampered  with,  and  the  date  at 
which  the  occurrence  was  seen  may  iiave  been  misstated.  At  any  rate,  a 
drunken  penitentiary  convict  wa«  uot  a  proper  person  to  put  in  control 
of  such  documents  under  the  circumstances.     (Kec,  458.) 

Mr.  Goshorn,  the  county  clerk,  testifies  that  Montague  had  served  a 
term  in  the  penitentiary  and  thav  he  was  a  Democrat  (Rec,  198).  Mr. 
Goshorn  says  that  Montague  was  an  intemperate  man  but  reliable. 
Montague's  antecedents  and  haVnts  caused  him  to  be  the  natural  object 
of  suspicion. 

Montague  is  now  dead,  auA  was  not  a  witness  in  the  case. 

The  cracker-box  showed  th^.cnisel  marks  where  it  was  opened  at  the 
bottom.  Whether  the  suspicions  naturally  attaching  to  Montague  were 
well  founded  or  not,  it  is  verv  probable  that  the  box  was  opened.  A 
board  was  taken  off  the  boirfcom  and  again  nailed  up.  Sealing  up  the 
top  lid  of  the  box  was  no  protection  against  removing  aboard  from  the 
bottom.  The  statute  reoujres  that  the  ballots  should  be  "sealed  up  in 
an  envelope  and  the  envelone  indorsed,"  etc. 

This  requirement  is  pot  met  by  merely  nailing  up  the  ballots  in  a 
wooden  box  and  sealinx?-  up  one  side  of  the  box. 

We  think  the  recouufc  snould  not  be  considered  and  that  the  exami- 
natic-n  of  the  case  should  therefore  proceed  upon  the  assumption  that 
contestant  was  entitled  to  the  certificate  of  election,  and  that  he  sbould 
be  seated,  and  that  he  should  retain  his  seat  unless  his  plurality  of  25 
votes  shall  be  overcome  by  the  investigation  of  the  alleged  illegal  votes 
cast  for  the  contestaat. 

FAILtrJUfi  OF  ELECTION  OFFICERS  TO  BE  SWORN. 

At  Coalburg  precinct,  contestant  claims  that  the  oflBcers  were  not 
sworn.  Sectioid  8»  chapter  3,  of  the  code  of  West  Virginia,  provides  as 
follows : 

The  said  oath  nh^  appear  properly  certified  on  one  of  the  poll- books  of  every  elec- 
tion, and  in  no  case  shall  the  vote  taken  at  any  place  of  voting  be  counted  unless  said 
oath  so  appeanj,  or  unless  it  be  proved  to  the  satisfaction  of  the  commissioners  of  the 
connty  court,  cccvened  at  the  court-house  as  hereinafter  required,  that  said  oath  was 
taken  before  said  commissioners, canvassers,  and  clerks  entered  upon  the  discharge  of 
the  duties  of  their  appointment. 

Contestee  claims  that  this  law,  which  in  terms  is  mandatory,  should 
be  held  unconstitutional. 

If  the  commissioners  of  the  county  court  had  counted  this  precinct 
it  would  De  presumed  that  the  proof  of  the  oath  was  made  to  their  sat- 
isfaction as  provided  in  the  statute.  (See  Smith  vs.  Jackson,  51  Cong.) 
It  mav  well  be  doubted  whether  such  a  statute  could  be  held  to  be 
other  than  merely  directory  in  any  event.  As  the  general  result  arrived 
at  v/onld  not  be  changed  by  excluding  the  Coalburg  vote  we  refrain 
from  directly  passing  upon  the  question. 

Whilst  it  might  be  very  proper  to  punish  the  officers  in  some  way  for 
violating  a  duty  imposed  by  statute  it  would  be  manifestly  a  danger- 


m'ginnis  vs.  alderson.  639 

ous  thing  to  disfranchise  a  precinct  because  the  officers  of  the  law 
through  accident,  oversight,  or  design  fail  to  take  the  i)Eescribed  oath  of 
office. 

Such  a  constructiou  would  place  it  in  the  power  of  the  officers  to  have 
their  return  rejected  at  will  if  the  majority  should  be  contrary  to  their 
political  prefpreuces. 

There  is  some  evidence  to  show  that  a  part  of  the  officers  were  sworn 
and  we  do  not  feel  willing  to  so  construe  this  law  as  to  disfranchise  the 
voters  of  Coalburgh,  where  Mr.  Alderson  had  a  majority  of  20.  The 
supreme  court  of  the  State  has  never  passed  upon  the  question. 

ILLEGAL  VOTES  CHALLENGED. 

-  Having  thus  reported  our  views  upon  the  election  and  as  to  the  right 
of  the  contestant  to  the  seat  upon  the  face  of  the  returns  we  will  next 
review  the  question  as  to  illegal  voters  challenged  on  both  sides.  This 
is  a  laborious  and  difficult  task  and  we  have  endeavored  to  consider  the 
evidence  as  to  each  particular  vote. 

The  following  is  the  constitutional  requirements  of  the  State  (Art. 
IV.,  sec.  6)  : 

The  male  citizens  of  the  State  sliall  be  eutitled  to  vote  at  all  elections  held  within 
the  counties  in  which  they  respectively  reside,  but  no  pereou  who  is  a  minor,  or  of 
unsound  niiud,  or  a  pauper,  or  who  is  under  conviction  of  treason,  felony,  or  bribery 
in  au  election,  or  who  has  not  been  a  resident  of  the  State  for  one  year  and  of  the 
county  in  which  he  otters  to  vote  for  sixty  days  next  preceding  such  otter  shall  be  per- 
mitted to  vote.     Const.  \V.  Va.,  Art.  I,  sec.  6. 

BOARD   CAMP  PKECINCT,   MERCER  COUNTY. 

Contestee  challenges  this  precinct  because  the  poll-books  do  not 
show  that  all  the  judges  were  sworn,  and  that  one  judge  was  not  sworn. 

What  we  have  said  as  to  precincts  where  the  same  point  is  made  by 
contestant  is  sufficient  answer  to  this  claim. 

DISPUTED  VOTES. 

Assailed  by  L.  D.  Solomon  (Rec.  2.33)  in  Mercer  and  McDowell  counties: 

E.  I.  Edwards,  Bowers  Darby,  Jno.  Kirby, 

Lee  Kirby,  Wm.  Mays,  Jos,  Ballard, 

Jno.  Jackson,  Jno.  Terry,  Sperill  Wilcher, 

Jno.  Locher,  M.  C.  Bodkin,  Wm.  Old, 

Thos.  Chandler,  Ed  Waller,  Beverly  Sanders, 

Monno  Kent,  Pleasant  Lee,  Monro  Wonack, 

BillNowlen,  And.  Bowen,  Wm.  Lee. 
Total  21. 

Mr.  Solomon  was  one  of  the  judges  of  election  at  the  Peery  Bottom 
precinct,  McDowell  County,  and  in  his  official  capacity  received  the 
votes  cast  by  these  electors.  It  does  not  appear  that  he  objected  to  any 
of  them,  although  he  was  well  acquainted  with  them,  and  if  they  were 
illegal  voters,  should  have  known  it  at  the  time  that  he  received  their 
votes.  Bis  action  as  an  election  officer  is  utterly  at  variance  with  his 
testimony  as  a  witness,  and  we  do  not  believe  that  we  would  be  justi- 
fied in  excluding  these  votes  upon  such  testimony. 

C  E.  liusmeisel  (Rec.  325,  326)  unsuccessfully  assails  the  following 
names :  John  Jackson,  Pleas.  Lee,  George  Clark,  Albert  Clark.  He 
shows  that  Jackson  was  working  at  Shamokin  Works  in  October,  18S7. 
He  does  not  know  personally  where  any  of  them  came  from. 


640  m'ginnis  vs.  alderson. 

Madison  Eadford  unsuccessfully  assails  the  followin  g  parties  at  Mill 
Creek,  Mercer  County  :  A.  J.  Kinsey,  A.  F.  Kinsey,  E.  J.  Kinsey,  Milton 
Otey,  Armstead  Otey,  and  David  Sales.  (Page  277  of  the  record,  and 
pay-roll  303  to  307.) 

Armstead  Otey  had  been  working  there  more  than  a  year.  The  time 
of  the  residence  of  the  Kinseys  is  stated  from  their  declarations.  Milton 
Otey  had  stated  that  he  had  been  away  to  Alabama.  This  evidence 
wholly  fails  to  show  that  these  men  were  not  competent  voters.  As  to 
Sales,  the  witness  says  he  did  not  look  old  enough  to  vote.  A.J.  Kin- 
sey does  not  appear  on  Mill  Creek  poll-list.     (Kec.  341.) 

L.  A.  Conner  unsuccessfully  assails  the  following  parties  (Rec.  270) 
at  Simmons  Creek,  Mercer  County  :  James  Clemens,  Peter  Hartsook, 
F.  D.  Holland,  James  Hackney,  Caleb  Welcher,  George  Price,  and  David 
E.  Bishop. 

His  statement  is  based  wholly  upon  vague  declarations  of  the  voters 
made  before  the  election,  and  which  declarations  are  inconsistent  with 
their  subsequent  action  in  casting  their  votes. 

James  Arnold,  Honaker's  Mill,  Mercer  County,  unsuccessfully  assails 
Junius  Cook. 

Witness  says  the  voter  did  not  look  to  be  of  age.  The  witness  proves 
the  vote  by  hearsay  from  the  voter.  Knows  nothing  of  the  length  of 
the  voter's  residence  in  West  Virginia. 

W.  A.  Davidson  unsuccessfully  assails,  at  Bluefield,  Mercer  County, 
Charles  Lee,  G.  B.  Smith,  and  John  Martin. 

Says  he  does  not  know  of  a  single  illegal  vote  (Eec.  333).  The  fact 
that  a  voter  had  worked  in  Virginia  did  not  show  loss  of  residence  in 
West  Virginia. 

D.  S.  Ratcliffe  assails  the  following  at  Oak  Vale,  Mercer  County:  Isaac 
Porterfield,  Thomas  Saunders,  George  Saunders,  James  Wall,  and  W. 
D.  Melvin.     (Rec.  248.) 

Mr.  Ratcliffe  was  one  of  the  judges  of  election,  and  the  same  reasons 
already  assigned  for  ignoring  the  testimony  of  Solomon  apply  with 
equal  force  to  him.  Two  of  the  judges  were  Democrats  and  one  Kejiub- 
lican.  Melvin's  vote  was  challenged  on  the  ground  of  minority ;  his 
father  was  present  and  the  vote  was  received.  Witness  made  no  ob- 
jection to  the  voting  of  the  other  parties. 

W.  P.  Boggess,  Oak  Vale,  Mercer  County,  unsuccessfully  assails  I. 
Porterfield,  Joseph  Wall,  Charles  Robinson,  and  W.  B.  Melvin.  (Rec, 
346.) 

The  witness  was  a  candidate  for  office,  and  he  importuned  these  men 
to  vote  for  him,  and  they  claimed  not  to  be  voters.  Declarations  of  this 
character  are  proverbially  unreliable. 

W.  A.  Young  assails  (Rec.  301)  at  Mill  Creek,  Simmons  Creek,  and 
Honaker's  Mills,  Mercer  County: 

Dau'l  Barbour,  Randall  Cook,  Jno.  Heil, 

Ed.  Hampton,  Jas.  Jarvisp  E.  J.  Kinsey, 

Mack  Lee,  Ambrose  Mills,  Thos.  Mertin, 

Armsted  Ottey,  Wm.  Brown,  Moses  Johnson, 

Silas  Johnson,  Elijah  Perkins,  Peter  Perkins, 

Green  Sheppard,  W.  J.  Thornhill,  Granville  Toller. 

Phillip  Turner,  J.  H.  Bramwell, 
Total,  20. 

His  testimony  is  simply  to  the  effect  that  many  of  these  men  brought 
their  families  to  West  Virginia  within  a  year,  but  does  not  go  to  the 
time  when  the  men  themselves  became  residents,  and  is  insufficient  to 
overturn  a  presumption  arising  out  of  their  votes  having  been  received 
by  the  duly  appointed  election  officers,    We  may  further  add  that  Mr. 


m'ginnis  vs.  alderson.  641 

Young  was  one  of  the  clerks  of  the  election ;  that  he  was  a  Democrat, 
and  registered  all  those  whose  votes  were  cast,  and  challenged  none  ot 
them  but  Bramwell  (Rec.  307). 

The  evidence  is  very  wholesale  in  its  character.  Hampton  was  work- 
ing there  November,  1887  (Rec.  302);  Barbour  was  working  there  No- 
vember, 1887  (Eec.  302) ;  Armstead  Otey  was  working  there  November, 
1887  (Kec.  302) ;  Silas  Johnson  was  working  there  November,  1887  (Rec. 
302) ;  Green  Sheppard  was  working  there  November,  1887  (Rec.  302) ; 
William  Brown  was  working  there  September,  1887  (Rec.  302) ;  Elijah 
Perkins  was  working  there  November,  1887  (Rec.  302) ;  W.  J.  Tbornhill 
was  working  there  November,  1887  (Rec.  302);  Thomas  Merton  was 
working  there  September,  1887  (Rec.  302) ;  Granville  Toler  was  work- 
ing there  November,  1887  (Rec.  302). 

A.  I.  Godfrey  assails  at  Simmons  Creek,  Mercer  County,  James  Cook 
and  John  L.  Smith  (Rec.  358). 

He  bases  his  evidence  upon  the  fact  that  taxes  for  1887  were  col- 
lected from  voters  in  West  Virginia  and  afterwards  paid  back,  because 
they  had  been  taxed  in  Virginia.  It  by  no  means  follows  that  because 
these  men  had  not  been  in  West  Virginia  long  enough  to  be  taxable 
for  the  year  1887,  that  they  were  not  there  in  time  to  be  legal  voters  in 
the  eleventh  month  of  the  year  1888. 

C.  M.  Kyle,  (Rec.  279  and  281)  testifies  as  to  sundry  parties,  but  his 
evidence  proves  nothing  except  the  time  that  they  worked  at  that  par- 
ticular place,  and  he  does  not  recollect  where  the  voters  had  previously 
worked.  He  sets  out  a  list  of  workmen  at  Caswell  Coal  Company's 
Works. 

L.  Schereschewsky,  Simmons  Creek,  Mercer  County,  assails  Joseph 
Ward  unsuccessfully. 

Ward  has  resided  a  year  and  a  half  in  the  county. 

J.  H.  Hetherman  assails  James  Cook,  Ed.  Spinner,  at  Simmons  Creek, 
Mercer  County.  (James  Cook,  No.  87,  page  388,  and  Ed.  Spinner,  No. 
204,  page  339.) 

Spinner's  vote  was  challenged,  as  appears  by  the  poll  list.  This  evi- 
dence is  not  sufficient  to  overcome  the  ruling  of  the  election  officers  on 
the  challenge.  As  to  Cook  the  witness  says  he  was  living  in  McDowell 
County  at  time  of  election,  and  had  previously  resided  in  Mercer 
County ;  that  he  had  resided  in  McDowell  less  than  sixty  days.  The 
question  of  their  residence  was  argued  before  the  judges  of  the  election 
and  determined  that  it  had  not  been  lost.  The  evidence  of  error  on  the 
I)art  of  these  officers  ought  to  be  clear  to  justify  a  change  of  ruling. 
Perdue,  a  Democratic  election  officer,  says  that  the  voters  were  chal- 
lenged and  sworn  (Rec.  238) ;  that  after  examination  he  and  the  other 
judges  thought  they  ought  to  vote.  In  many  instances  other  proof  was 
furnished  as  to  their  residence. 

W.  A.  Thompson  assails  at  Cross  Roads,  Mercer  County — 

D.  M.  Jones.  Joe.  Williams.  Jas.  Craft. 

C.  B.  Smith.  Hy.  Lessen.  Jno.  Griffith. 

Jerry  Davis.  Jas.  Glenn.  Eobt.  Craft. 

J.C.Simpson.  Jno.  Marlin,  Lewis  Troy. 

Ben.  Peery.  Gus.  Hale.  Han'l  Smith. 
Total,  15. 

He  was  commissioner  of  election,  the  judges  being  two  Democrats  and 
one  Hepublicau.  All  these  votes  were  received  by  these  parties,  and 
what  we  have  said  of  Solomon  applies  here  also. 

Pleas.  Robinson  assails,  at  Mill  Creek,  Mercer  County,  the  follow- 

H.  Mis.  137 a 


642  m'ginnis  vs.  alderson. 

ing  (Rec.  287):  Ambrose  Mills,  James  Jarvis,  Armstead  Otey,  Bird. 
"Wright,  David  Sales,  and  Jim  Mowgrass. 

Otey  had  lived  there  over  a  year  but  did  not  have  his  family  with  him. 
As  to  Sales'  age,  he  simply  repeats  what  he  says  Sales'  mother  told 
b-im.  This  is  notsuflBcient.  As  to  Ambrose  Mills,  James  Jarvis,  Bird. 
Wright,  and  Jim  Mowgrass,  witness  shows  that  they  came  from  Vir- 
ginia in  the  spring  of  1888,  but  Mills  worked  at  Mill  Creek  three  years 
ago.  Jarvis  he  says  he  understood  worked  at  Mill  Creek  before,  but  wit- 
ness did  not  know  him.  As  to  Wright  and  Mowgrass,  witness  shows 
their  residence  at  Pocahontas,  Va.,  and  these  two  votes  should  be  held 
illegal. 

Thomas  Falconbridge  assails  the  following  parties  (Rec.  312)  at  May- 
bery,  McDowell  County: 

Alex.  Stokes.  J.  H.  Tate.  Jos.  Napor. 

W.  T.  Smith.  Henry  James  J.  W.  Marsball. 

Clem  Green.  Geo.  Wade.  A.  L.  Calhoun. 

Jdo.  Saunders.  Wm.  Hardy.  Wm.  Wooten. 

Hardy  Green.  Robt.  Lemen.  Wash  Hardy. 

Wm.  Old.  M.  Robinson. 
Total,   17. 

This  witness  seems  to  be  quite  an  enthusiastic  one.  He  is  impeached 
as  to  many  of  the  parties  named,  and  such  doubt  is  cast  upon  his  testi- 
mony that  it  ought  not  to  be  allowed  to  supersede  the  action  of  the  elec- 
tion officers  and  the  presumption  which  attaches  to  the  receipt  of  a 
vote.    For  impeachment  of  this  witness'  testimony  see  as  follows : 

Rolls,  p.  320,  shows  Hardy  was  working  forShamokiu  Coal  Company 
October  1,  1887,  more  than  a  year  before  the  election.  He  changed  to 
Elkhorn  Coal  Company  August,  1888.     (Rec.  329.) 

J.  W.  Marshall  (Rec.  326)  was  working  in  October,  1887,  for  Shamo- 
kin  Coal  Company. 

Wm.  T.  Smith  is  shown  by  Mr.  Hegg  to  have  worked  two  years  in 
the  State  for  Freeman  &  Jones.     (Rec.  448.) 

J.  H.  Tate  worked  for  Houston  Coal  Company  from  August,  1888,  to 
October,  1888.  (Rec.  334.)  Falconbridge  says  this  man  came  direct  from 
Virginia  to  him  in  August,  1888.  (Rec.  313.)  He  is  charged  to  have 
voted  at  Peery  Bottom  (Rec.  29),  but  his  name  is  not  on  the  Peery  Bot- 
tom list.    (Rec.  350.) 

Robert  Lemen  did  not  vote  (Rec.  350),  though  he  worked  for  Shamo- 
kin  Coal  Company  from  October,  1887.    (Rec.  326.) 

Joseph  Napor  was  working  for  witness  in  October,  1888,  he  says. 
Hewitt  says  Napor  lived  at  Elkhorn.    (Rec.  453.) 

W.  R.  Jacobs  assails  (Rec.  367)  unsuccessfully  at  Peery  Bottom  and 
Mayberry,  McDowell  County — 

Geo.  Brown.  C.  S.  Calloway.  Wm.  Nowlin, 

Geo.  Brown.  Jacob  Dennis.  Hy  Gardner. 

Geo.  Allen.  Rich'd  Brittou.  Jno.  Crenshaw, 

Calvin  Green.  Hy  Holly.  Jno.  Mitchell. 

Chas.  Folk.  Gus  Thompson.  Allison  Toller. 

Polk  Bnrman.  Anthony  Wyatt.  Wm.  Brown. 

Thad  Brown.  Thos.  Edwards.  Wm.  Holland. 

Tom  Martin.  Ambrose  Mills.  Jno.  Patterson. 

Bird  Wright.  Sam'l  Wheeler.  Jacob  Witters. 
Total,  27. 

These  parties  are  assailed  on  the  ground  that  within  a  year's  time 
they  had  been  working  in  an  adjoining  county.  This  witness's  evidence 
is  insufi&cient  to  exclude  these  votes. 


m'ginkis  vs.  alderson. 


643 


Mr.  Bloch  (Eec,  3G8),  registrar  at  Pocaliontas,  assails : 


Mill  Creek,  Mercer  Co. 


1  Brown,  Wm. (colored). 

2  Edwards,  Thos.  (white). 

3  Evans,  Lee  (colored). 

4  Lee,  M.  (colored). 


5  Patterson,  Jno.  W.  (colored). 

6  Smoot,  Bullet  (colored). 

7  Williams,  Addison  (colored). 


Simmons  Creek,  Mercer  Co. 


1  Allen,  Geo.  (colored). 

2  Bailey,  Jno.  (white). 

3  Bagley,  David  (colored). 

4  Chambers,  Solomau  (colored). 

5  Chttam,  John  (colored). 

6  Dromnie,  J.  W.  (white). 

7  Duncan,  John  (white). 

8  Davis,  Wm.  (colored). 

9  Green,  Calvin  (colored). 
10  Hackney,  Jas.  (colored). 


11  Harman,  Lewis  (colored). 

12  Jones,  Fred,  (colored). 

13  Lucky,  Frank  (colored). 

14  Lee,  James  (white). 

15  Powell,  W.  A.  (white). 

16  Polk,  Chas.  (colored). 

17  Robertson,  Jno.  (colored). 

18  Thompson,  Gus.  (colored). 

19  Williams,  Geo.  (colored). 

20  Weatherford,  Wm.  (colored). 


1  Brown,  Geo.  (colored). 

2  Callaway,  S.  C.  (white). 


Peery'$  Bottom,  McDowell  Co. 

3  Davis,  Wm.  (colored). 

4  Harriss,  Reubin  (colored). 

Mayherry,  McDowell  Co. 

4  Price,  Wm.  (colored). 

5  Scott,  Green  (colored). 

6  Smith,  George  (colored). 


1  Brown,  Jim  (colored). 

2  Brown,  Geo.  (colored). 

3  Debnan,  Wm.  (colored). 

These  voters  are  objected  to  on  the  ground  that  they  were  registered 
at  Pocahontas.  This  is  not  sufficient  to  overcome  the  presumption  at- 
taching to  the  receipt  of  the  votes  by  the  election  officers,  for  the  reason 
that  under  the  law  of  Virginia  the  registration  is  permanent,  and  there 
is  nothing  inconsistent  in  the  prior  registry  of  these  parties  at  Poca- 
hontas and  actual  citizenship  in  West  Virginia  at  the  time  the  votis 
were  cast. 

J.  M.  Mvles  (Rec,  266),  at  Mill  Creek,  Mercer  County,  assails  (see 
Time-book,'^302): 


Wm.  Brown,  Sept.  15,  '87. 
Green  Sheppard,  Nov.,  '87. 
Ray  Fitzgerald,  Nov.,  1887, 
Joe  Colliver,  Nov.,  1887. 
Jas.  Harvey,  Dec,  '87. 
Lip  Starling,  not  on  roll. 
Thos.  Bibb,  not  on  roll. 
D.  W.  Figgins,  not  on  roll. 
W.  Rice,  not  on  roll. 
Sam.  Davis,  not  on  roll. 
Jno.  Guv,  not  on  roll. 
J.  H.  P.' Prior,  Nov.,  1887. 
Jas.  Prior,  not  on  roll. 
Squire  Young,  not  on  roll. 
And.  Ross,  not  on  roll. 
Wm.  Bruce,  not  on  roll, 
Rob't  Simmons,  not  on  roll, 
P'ount  Black,  not  on  roll. 
ThoE.  Chambers,  not  on  roll. 
Geo.  Redd,  not  on  roll. 
Peyton  Simmons,  Sept.,  '88. 
Wm.  Gather,  not  on  roll. 
Henry  Watkins,  not  on  roll. 
King  Stovall,  not  on  roll. 
W.  H.  Nicewander,  not  on  roll. 
Jno.  Dickerson,  Nov.,  1887. 
Albert  Gairison,  Nov.,  1887. 
Juo.  Wutkius,  not  on  roll. 


Anderson  Price,  not  on  roll, 
Oscar  Holmes,  not  on  roll. 
Dan  Franklin,  not  on  roll. 
Jas.  Jeffries,  not  on  roll. 
O.  Lewis,  not  on  roll. 
George  Ray,  not  on  roll. 
Wash.  Pennell,  Oct.  3,  '87. 
Geo.  Johnson,  not  on  roll. 
W.  H.  Hastin,  not  on  roll. 
Rob't  Franklin,  not  on  roll. 
Ed.  Fullen,  Nov.,  '87. 
Oliver  Dillard,  Mch.,  '88. 
Jno.  Daniels,  not  on  roll. 
Chas.  Harvey,  not  on  rolL 
Sam.  Wheeler,  Sept.,  '88. 
And.  Jeffries,  not  on  roll. 
E.  P.  Alley,  not  on  roll. 
Phil.  Turner. 
Jud.  Coles,  Jan.,  '88. 
Geo.  Johnson,  not  on  rolL 
Jno.  Douglass,  not  on  roll, 
Ed.  Ford,  not  on  roll. 
Ed.  Dillard,  not  on  roll. 
Peter  Parker,  Nov.,  '87. 
Henry  Woodson,  not  on  roU. 
Jas.  Giles,  not  on  roll. 
Ed.  Ford,  not  on  roll. 


644  m'ginnis  vs.  alderson. 

The  evidence  of  this  witness  is  wholly  unreliable.  The  foundation 
of  it  as  given  bj  himself  is  the  time  book  found  upon  pa^e  302  ot  the 
record.  An  examination  of  this  time-book  will  disclose  the  fact  that  a 
very  large  number  of  the  parties  as  to  whom  he  testified  were  not  to 
be  found  upon  the  roll  at  all,  their  numes  are  so  noted  above.  With 
respect  to  others  as  to  whom  he  testified  his  testimony  is  contradicted 
by  the  evidence  of  other  parties,  showing  the  residence  of  the  voters 
assailed  in  West  Virginia  at  times  dilierent  from  those  given  by  ti:e 
witness.  His  testimony  as  a  whole  is  vague  and  indefinite  and  given 
in  wholesale.  It  is  founded,  furthermore,  upon  declarations,  niauy  of 
them  made  subsequent  to  the  election,  and  which,  under  the  rules  of 
law  adopted  by  the  committee  heretofore,  have  been  declared  incom- 
petent. There  are  in  fact  no  declarations  testified  to  by  this  witness 
which,  in  the  judgment  of  your  committee,  have  sufficient  weight  to 
overcome  the  judgment  of  the  election  board  that  received  the  votes. 

King  Stoval  is  on  Cooper's  roll,  p.  303,  il^ovember,  1887;  Green  Shep- 
herd worked  for  Cooper  November,  1887.     (Rec,  303.) 

George  Booth  assails,  at  Mill  Creek,  Mercer  County  (Rec,  284) : 

Jas.  R.  Booth,  Jno.  W.  Booth,  Thos.  Booth, 

Thos.  Myles,  Jeff.  Willis,  Wilson  Booker, 

Moses  Johuson,  Jno.  Loch,  Jas.  Jarvis, 

Thos.  Saunders,  Dnke  Cobbs,  Elijah  Perkin. 

Chas.  Toller,  Granville  Toller. 
Total,  14. 

This  witness's  evidence  is  not  sufficient  to  overcome  the  right  of  any  of 
these  men  to  vote.  It  fails  to  prove  the  beginning  of  their  residences,  and 
the  presumption  arising  from  the  reception  of  their  votes  has  not  been 
overcome. 

W  R.  Johnston  assails,  at  Mill  Creek,  Mercer  County,  the  following 
(Rec,  321): 

Wilson  Booker,  Overton  Mead,  Sam'l  Mayberry, 

Peter  Parker,  Sheridan  Reed,  Hy  Woodson, 

Kelton  Winston  Addison  Williams,  J.  T.  Smith, 

Jas.  Davis,  Wm.  Estes,  Sam'l  T.  Hunter, 
Total,  12. 

S.  C.  Bernheim  (432)  supports  the  right  of  the  following  voters: 
Willis  Hayden,  Mason  Thornton,  JeflF.  Shelton,  Thos.  Hightower. 

W.  R.  Johnson  is  a  somewhat  interesting  example  of  the  testimony 
by  which  large  masses  of  voters  have  been  sought  to  be  disfranchised 
or  their  votes  excluded  in  this  district.  He  swears  that  his  fiimily  re- 
side in  Salem,  Roanoke  County,  Va.  He  also  swears  that  these  various 
voters,  or  a  considerable  portion  of  them,  were  not  residents  of  West 
Virginia,  but  were  in  fact  residents  of  Virginia  because  their  families 
resided  in  Virginia,  but  it  appears  on  page  341  that  said  Johnson,  not- 
withstanding the  residence  of  his  family  at  Salem,  Roanoke  County, 
Va.,  voted  for  Alderson  at  Mill  Creek,  Mercer  County,  and  his  vote  has 
been  counted  for  Alderson.  He  now  seeks  to  disfranchise  twelve  other 
persons  upon  grounds  which,  if  tenable,  disfranchise  himself.  He  voted 
under  the  same  circumstances  which  he  claims  disfranchises  the  others. 
He  voted  after  being  challenged,  and  swore  his  vote  in.  A  man  whose 
family  lived  in  Virginia  and  who  swore  his  vote  in  in  West  Virginia, 
should  hardly  be  accepted  as  a  witness  to  disqualify  a  large  number 
of  other  voters  situated  precisely  as  he  was.  Johnson  was  living  at 
Flat  Top  Tunnel,  W.  Va.  By  a  misprint  (p.  321)  it  is  stated  as  Flat 
Top  Tunnel,  Va.  (See  map,  p.  245.)  His  working  residence  was  in 
West  Virginia,  and  he  voted  there,  notwithstanding  the  residence  of 
his  family  at  Salem,  Va, 


M^GtNNlS   VS.   ALDERSOtf. 


645 


Witness  says  he  does  not  know  whetber  the  men  came  directly  from 
Virginia.     (Rec,  322.) 

S.  M.  Williamson  assails  (Rec,  290)  at  Simmons'  Creek,  Mercer 
County,  Perry  Bottom  poll-list,  p.  350 ; 


Monroe  Wammick, 
Jno.  Jankin, 
Rob't  Tanner, 
Green  Scott, 
Geo.  Brown, 
Mack  Robinson, 
Abe  Helm, 
Marshall  Clark, 
J.  A.  Williama, 
Chas.  Hardy, 
Jno.  Lewis, 
Lee  Kirby, 
Jerry  Richardson, 
Marshall  Stoball, 
J.  J.  Scott, 
David  M.  Jones, 
Jas.  Weaver, 


W.  H.  Smith, 
C.  S.  Calloway, 
Dick  Woods, 
Spencer  Witcher, 
Edw'd  Johnson, 
Mason  Thornton, 
Henry  James, 
J.  W.  Marshall, 
J.  A.  Napor, 
Geo.  Helm, 
Henry  Taylor, 
Cha«.  H.  Howard, 
Rob't  Saunders, 
Wm.  Caldwell, 
Henry  Woodson, 
Wm.  Brown, 
Chas.  Johnson, 


Kelton  Winston, 
G.  B,  Smith, 
C.  M.  Spencer, 
Dan  Dickenson, 
A.  C.  Patterson, 
Thos.  Clark, 
Jno.  L.  Waite, 
W.  T.  Smith, 
Smith  Russell, 
Jno.  Patterson, 
Jno.  Boiling, 
Wm.  Lee, 
G.  W.  Wilson, 
Chas.  Clark, 
Ben  Wade. 


S.  M.  Williamson  assails  these  parties  upon  the  ground  that  they 
were  not  qualified  voters  by  reason  of  lack  of  sufficient  time  of  resi- 
dence in  West  Virginia.  As  to  a  very  large  number  of  the  parties  so 
assailed,  there  is  contradictory  testimony  out  of  the  mouths  of  other 
witnesses.  This  is  true  probably  as  to  seventeen  or  eighteen  of  the  49 
voters  assailed.  In  other  words,  Mr.  Williamson  is  by  the  testimony 
of  witnesses  upon  the  contestee's  side  of  the  case  proven  to  have  been 
mistaken,  to  put  it  mildly,  in  at  least  that  many  cases.  With  respect 
to  the  other  voters,  as  to  whom  he  is  not  directly  contradicted,  his  tes- 
timony is  of  such  a  vague  and  indefinite  character  as  to  render  it  worth- 
less to  disfranchise  these  parties.  In  not  a  single  instance,  if  the  in- 
quiry were  being  made  as  to  the  legality  of  the  particular  vote  cast, 
could  its  illegality  be  proven  by  the  testimony  of  Mr.  Williamson. 
This  is  an  example  of  testimony  by  wholesale,  and  it  is  insufficient  to 
affect  individual  votes.  After  testifiying  as  to  the  names  given,  he 
qualifies  his  evidence  by  confining  it  to  "  most  of  them." 

Solomon  (235)  says  Womack  came  from  Virginia  in  November  or 
December,  1887 ;  Williamson  claims  that  he  came  in  May,  1888. 

Robert  Lemon,  witness  says,  came  in  July,  1887,  and  worked  till  fall ; 
then  went  home,  and  did  not  come  back  till  July,  1888,  whereas  it  ap- 
l)ears  from  the  Shamokin  pay-roll  (326)  that  he  was  working  for  that 
company  in  October  and  November,  1887. 

Green  Scott,  witness  says,  came  from  Virginia  in  February,  1888,  but 
the  Caswell  Creek  Company's  rolls  show  that  he  was  working  for  that 
company  almost  continually  from  October,  1887,  to  August,  1888. 

John  Lewis,  witness  says,  came  from  Virginia  in  April,  1888,  but  it 
appears  from  Cooper's  rolls  (p.  303)  that  he  was  working  from  January 
to  November,  inclusive,  for  Cooper. 

Lee  Kerby,  witness  says,  came  from  Virginia  November  17,  1887, 
while  Solomon  swears  (p.  234)  that  Lee  Kerby  came  with  John  Kerby 
in  July  or  August,  1887. 

Mason  Thornton,  witness  says,  came  from  Virginia  in  November,  1888, 
while  S.  C.  Bernheim  (p.  432)  swears  that  he  had  lived  on  Simmons' 
Creek  three  years. 

J.  W.  Marshall,  witness  says,  came  from  Virginia  in  January,  1888, 
but  pay-roll  (p.  326)  of  Shamokin  Company  shows  that  he  was  working 
for  that  company  in  October,  November,  and  December,  1887. 

J,  A.  Napor,  witness  says,  came  from  Virginia  in  February,  1888,  but 


646  m'ginnis  vs.  alderson. 

Jobn  D.  Hewitt  (p.  453)  swears  that  he  had  been  in  West  "Virginia  two 
years  belore  the  election. 

Charles  H.  Howard,  witness  says,  came  from  Virginia  in  January, 
1883,  but  Rev.  John  M.  Douglass  (p.  441)  says  he  had  been  in  West 
Virginia  about  two  years  before  election ;  and  John  Cooper's  pay-roll 
(p.  302)  shows  that  he  had  been  working  for  him  from  September,  1887, 
to  November,  1888,  continuously,  except  in  June,  July,  and  August, 
1888. 

John  Patterson,  witness  says,  came  from  Virginia  in  February,  1888; 
by  Cooper's  pay-roll  (p.  303)  shows  that  he  worked  for  Cooper  from 
November,  1887,  to  November,  1888,  without  interruption. 

William  Lee,  witness  says,  came  from  Virginia  in  March,  1888,  but 
Sbamokin  Coal  Company's  roll  shows  (p.  326)  that  he  was  working  for 
that  company  in  August  and  October,  li<S7. 

To  undertake  to  disfranchise  voters — wliose  votes  had  been  accepted 
by  an  election  board — with  testimony  such  as  that  of  Williamson 
would  be  to  render  elections  a  farce. 

Sam'l  Beckett  assails  at  Simmons' Creek,  Mercer  County,  the  follow- 
ing (Rec,  228) : 

Thos.  Ingram,  Willis  Hayden,  Wiley  Morton, 

York  Scales,  King  Lee,  Woodey  Dews, 

F.D.Holland,  JeftShelton,  Harris  Boyd, 

Geo.  Price,  Sam'l  Wilbnrn,  Chas.  E.  Holloway, 

Jaa.  Hackney,  Caleb  Wilclier,  Mason  Thornton. 
Total.  14. 

It  appears  that  the  votes  of  these  parties  were  challenged  at  the  polls, 
which  were  presided  over  by  two  Democratic  judges  and  one  Repub- 
lican judge,  and  the  challenge  was  overruled.  The  testimony  of  this 
witness  is  against  the  judgment  of  the  election  board,  rendered  in  the 
exercise  of  its  proper  functions,  and  is  not  suflicient,  in  the  judgment 
of  your  committee,  to  exclude  the  votes  of  the  parties  assailed. 

The  witness  concedes  a  four  years'  residence  in  the  State  to  Thomas  ' 
Ingram. 

York  Scales,  the  witness  says,  came  from  Virginia  about  six  months 
before  the  election.  On  the  contrary,  he  came  from  Simmons'  Creek  in 
October  (p.  281),  and  had  been  working  for  the  Caswell  Creek  Coal 
Company  from  October,  1887  to  April,  1888,  and  in  August  and  Septem- 
ber, 1888. 

Caleb  Wilcher,  witness  says,  came  from  Virginia  about  three  months 
before  the  election  ;  but  Jno.  D.  Hewitt  (p.  453)  says  he  had  been  work- 
ing at  Simmons  and  Flipping's  for  about  two  years,  part  of  the  time  at 
one  place  and  part  at  the  other. 

J.  H.  Clare  assails  (Rec,  250)  at  Peery's  Bottom,  McDowell  County  : 

Robt.  Good.  Geo.  Smith.  L.  M.  Burwell. 

Alex.  Stokes.  J.  Naper.  Lewis  Law. 

Jno.  Crider.  Tas.  Dillard.  Wm.  Simpson. 

Minnis  Wade.  Wm.  Price.  J.W.Marshall. 

Jno.  Kerby.  Bowles  Darby.  Robt.  Jones. 

Wm.  Lee.  Joshua  Green.  Pleasant  Lee. 

Monroe  Kent.  J.  L.  Kinner,  Sam.  Eckers. 

Jno.  Jackson.  Fry  Wade.  W.T.Smith. 

Wm.  Nowlin.  W.  C.  Botkins. 
Total  26. 

Mr.  Clare  was  a  detective  employed  in  the  interest  of  the  contestee 
at  $2.50  a  day  to  travel  around  and  hunt  up  illegal  votes.  His  evidence 
is  mainly  based  upon  conversations  had  with  the  parties  named,  after 
the  election,  and  this  testimony  generally  is  of  such  a  character  as  to 


m'ginnis  vs.  alderson.  647 

carry  but  little  weight.  We  do  not  think  that  this  testimony  overcomes 
the  presumption  arising  from  the  reception  of  any  of  these  votes. 

E.  L.  Weaver  (page  282)  also  assails  at  Mayberry,  McDowell  County, 
Eobert  Law,  Lewis  Law,  James  Dillard,  J.  H.  Mosely,  Lowne  Jones, 
Morris  Wade,  Smith  Russell,  and  J.  W.  Marshall. 

This  witness  testifies  to  declarations  of  the  voters  as  to  their  residence. 
These  declarations  are  insufiBcient  to  overcome  the  presumption  of 
legality  as  to  the  reception  of  their  votes. 

J.  0.  Freeman  (Rec,  371)  assails  William  Lee  and  Wesley  Wagner. 

Wesley  Wagner  did  not  vote,  and  there  is  no  proof  that  William  Lee, 
who  voted,  is  the  same  man  referred  to  by  this  witness,  and  we  have 
already  seen  that  William  Lee,  who  voted  at  Peery's  Bottom,  was  a 
legal  voter  (p.  326),  as  Lee  commenced  work  at  Shamokin  Coilnty, 
August  29,  1887. 

M.  0.  Franklin  assails  the  following  in  Mercer  and  McDowell  Counties 
(Rec,  333) : 

Sam  Akers.  Joe  Ballard.  Jno.  Dooley. 

Ed  Harmon.  Jas.  Hackley.  Sam'l  Lambert. 

Geo.  Marsh.  Jake  Prillerman.  H.  C.  Patterson. 

W.  T.  Smith.  Wylie  Smith.  W.  H.  Terry. 

Jno.  Terry.  Frye  Wade.  J.  S.  Wade. 

This  witness  only  knows  where  these  men  come  from  by  report,  p.  335. 
This  is  not  sufficient. 

J.  R.  Jewell  assails  the  following  parties :  Richard  Holloway,  Will- 
iam Johnson,  George  Johnson,  and  Philip  Williams,  at  Alderson,  Mon- 
roe County. 

The  right  of  these  votera  to  vote  is  assailed  on  the  ground  of  non- 
residence.  The  proof  of  non-residence  is  very  vague,  and  is  mainly 
based  on  declarations  made  by  the  voters  that  in  going  back  to  Vir- 
ginia they  were  "going  home,"  an  expression  which  is  in  common  use 
by  men  living  in  a  State  different  from  that  of  their  birth.  Besides, 
these  votes  were  challenged  and  passed  upon  by  the  judges  of  election. 

We  find  the  following  illegal  votes  cast  for  the  contesting  parties. 

Illegal  votes  for  McGinnis. 


1  Taz  Brown  (Rec,  152, 159, 173, 174, 179, 

180, 197). 

2  Joseph  Robinson  (Rec,  159,  173,  174, 

197, 209).; 

3  Augustus    Higginbotham    (Rec,  175, 

176, 178, 180, 197). 

4  Wesley  Moyes  (Rec,  184, 186,  187). 

5  Robert  Rilev  (Rec,  164,  184,  186, 187, 

213). 


6  Frank  Frame  (Rec,  163,  213). 

7  Dan'l  Casdorf  (Rec,  164,  213). 

8  Geo.  Hughes  (Rec,  115), 

9  J.  W.  Moore,  miuor  (Rec,  115, 116, 119, 

121). 

10  F.  M.  Norman  (Rec,  185,  204,  214). 

11  H.  C.  Patterson  (Rec,  334,  293,  294. 

12  Tim  Mowgrass  vRec,  287). 

13  Bird  Wright  (Rec,  287). 


Jacob  Judy  was  a  legal  voter  and  offered  to  vote  and  his  vote  was  ex- 
cluded. He  had  the  same  right  to  vote  as  two  Democrats  named  Quick. 
Their  votes  were  received  and  his  was  excluded.  His  vote  should  be 
counted  for  McGinnis.     (Rec,  49,  50,  52.) 

Rhodes  D.  Trent  (misprinted  Friend,  Rec,  89)  went  to  the  polls  at 
4.30  p.  m.  to  vote  for  McGinnis  and  his  vote  was  refused,  the  polls  being 
closed  that  early.  This  vote  was  tendered  and  refused  during  voting 
hours  and  should  be  counted  for  McGinnis. 


648  M'GINNIS  VS.   ALBERSON. 

Illegal  votes  for  Alderson. 


1  M.  A.  Bell(Ilec.,  37.88). 

2  Luther  P.  Fleming  (Kec,  42,44). 
'.i  J.  Traineor  (Rec,  53,54,55). 

4  Christopher  Burnes  (Kec,  56,57,146). 

5  John  R.  McCoy  (Rec.,  89,93). 

6  J.  R.  Presley  (Rec,  90). 

7  Captain  Newsome  (Rec,  89,93). 

8  Isaac  Brown  (Rec,  89,90,93). 


9  Wm.  J.Wyant  (Rec,  97,98). 

10  Rilev  Gilpin  (Rec,  97). 

11  Elmore  Koss  (Rec,  99). 

12  Wm.  Bittinger  (Rec,  101,103). 

13  John  Piirke  (Kec,  102). 

14  Archibald  Gauoe  (Rec,  103). 

15  Kelley  Broyles  (Rec,  104). 

16  JamesH.  Crawford,  jr.  (Rec,  96,98) 


SUMMARY. 

Majority  forMcGinnla  on  returns ....25 

Deduct  illegal  votes 13 

12 
Add  votes  illegally  rejected 2 

Majority  for  McGinnis.. - 14 

Add  illegal  votes,  lost  to  Alderson 16 

Net  majority  for  McGinnis 30 

We  recommend  the  passage  of  the  following  resolutions : 

Resolved,  That  Jiio.  D.  Alderson  was  not  elected  to  the  oflBce  of  Eep- 

resentative  in  Congress  for  the  Third  Congressional  district  of  West 

Virginia. 
Resolved,  That  James  H.  McGinnis  was  duly  elected  as  Kepresenta- 

tive  in  the  Fifty-first  Congress  for  the  said  district  and  is  entitled  to 

his  seat  as  such  Eepresentative. 


VIEWS  OF  THE  MINORITY. 


The  return  of  Kanawha  County  was  properly  omitted  by  the  gov- 
ernor; indeed,  in  technical  strictness,  there  is  even  yet  no  legal  return 
from  this  county.  But  counting  the  vote  of  said  county  as  shown  by 
recounts  lawfully  had,  contestee  has  a  plurality  on  the  face  of  the  re- 
turns. The  precautions  taken  pending  the  recount  were  sufficient  to 
make  it  trustworthy.  Of  the  illegal  votes  charged,  a  very  much  larger 
number  is  proved  to  have  been  cast  for  McGinnis  than  for  Alderson, 
and  contestee's  plurality  is  considerably  increased  thereby. 

649 


VIEWS  OF  THE  MINORITY. 


August  2, 1890. — ^Mr.  Outhwaite,  from  the  Committee  on  Elections, 
submitted  the  following  as  the  views  of  the  minority: 

For  the  purpose  of  attempting  to  shift  the  burden  of  proof  in  this 
case,  the  majority  set  out  to  show  that  the  contestant  was  entitled  to 
the  certificate  of  election.  The  report  presents  a  tabulated  statement 
made  by  the  governor  of  the  vote  cast  in  the  district,  from  which  he 
omits  the  vote  of  Kanawha  County.  It  insinuates  that  some  great 
wrong  was  done  by  omitting  this  county  that  "cast  an  undisputed 
majority  of  over  1,300  in  favor  of  the  contestant,"  and  gravely  states 
that — 

A  certificate  of  election  showing  npon  its  face  that  nearly  8,000  votes  were  wholly 
ignored  in  the  court  can  have  no  binding  force  and  effect  in  a  contest  of  this  character. 

The  statement  of  the  governor  clearly  shows  that  it  was  by  no  fault 
of  his,  nor  of  the  contestee's,  that  the  vote  of  this  county  was  omitted 
at  the  time  he  issued  the  certificate.     He  says : 

The  county  commissioners  declared  the  result  of  the  election  in  Kanawha  Coanty 
December  15,  1888.  The  certificate  was  mailed  in  this  city  on  the  17th  of  said  month, 
and  received  in  this  office  late  in  the  afternoon. 

On  the  same  day  a  writ  of  certiorari  was  awarded  by  the  circuit  court  of  Kanawha 
County  on  the  petition  of  John  D.  Alderson,  who  claimed  to  be  elected  to  said  office, 
against  the  said  commissioners,  and  against  James  H.  McGinnis,  who  also  claimed  to 
be  elected  to  said  office.  The  order  awarding  the  certiorari  provided  for  a  supersedeas 
to  the  judgment  and  decision  of  said  commissioners  upon  the  execution  of  bond,  as 
required  by  statute.  The  bond  was  forthwith  executed,  and  said  judgment  and  de- 
cision suspended.  A  certified  copy  of  the  record  in  the  certiorari  proceedings  shows 
that  said  commissioners,  in  declaring  the  result  of  the  election  in  said  county,  ex- 
cluded from  the  recount,  had,  under  the  statute,  on  the  demand  of  said  Alderson,  a 
sufficient  number  of  ballots  in  his  favor  to  have  secured  his  election  to  said  office. 

The  circuit  court  aforesaid  on  the  23d  inst.  entered  judgment  reversing  the  entire 
proceedings  and  finding  of  said  commissioners,  and  remanding  the  cause. 

It  will  thus  be  seen  that  no  hardship  resulted  to  contestant,  no  in- 
justice to  Kanawha  County,  no  evil  to  the  people  of  the  district,  and 
no  wrong  to  the  country  by  this  omission  of  Kanawha  County.  The 
first  certificate  of  election  issued  by  the  Kanawha  County  commissioners 
was  annulled  by  the  judgment  of  the  circuit  court  of  Kanawha  County, 
entered  on  the  23d  day  of  February,  1889,  the  judge  thereof  being  a 
Republican  (see  Eec,  p.  221).  The  second  certificate  of  the  result  of  the 
election  in  said  county,  issued  by  said  commissioners,  if  they  issued  one, 
is  now  inoperative  and  suspended  by  an  order  made  by  the  same  circuit 
court  entered  on  the  3d  day  of  January,  1890  (see  additional  testimony 
printed  in  this  case,  pp.93,  94);  and,  in  truth  and  in  fact,  there  is 
to-day  existing  no  legal  return  of  the  election  in  said  county.    If  a 

651 


652  M*GIN^S  vs.   ALDERSON. 

teclinical  rule  was  to  be  applied  in  this  case,  it  inigbt  be  claimed  tliat 
this  controversy  should  be  determined  "without  considering  the  vote  of 
Kanawha  County  at  all. 

Yet,  includiug  this  county,  Mr.  Alderson  has  a  clear  majority  of  16  in 
the  district.  Even  if  the  correction  of  the  error  claimed  to  have  been 
made  against  contestant  in  Boone  County  were  conceded,  all  votes  cast 
counted  gives  coutestee  a  clear  majority  of  7  in  the  district.  But  we 
can  not  concede  this  claim.  It  is  sufficient  reason  to  call  attention  to  the 
unsatisfactory  testimony  by  which  the  certified  vote  of  that  county  is 
sought  to  be  changed  favorably  for  the  contestant.  I^o  explanation  is 
attempted  to  be  given,  no  error  is  pointed  out,  to  account  for  it.  The 
officers  having  in  charge  the  poll-books  and  tally-sheets  are  not  called 
to  account  for  their  proper  keeping,  nor  to  explain  the  reasons  for  the 
desired  change.  The  witnesses  were  examined  without  due  legal  notice 
to  coutestee  as  required  by  law.  It  is  a  "  recount"  of  a  nature  not  au- 
thorized by  law.  The  men  who  made  the  mistake,  if  any  was  made,  are 
kept  off  the  witness  stand.  Yet  the  committee  insist  upon  giving  con- 
testant 9  votes.  No  suspicion,  no  danger  of  fraud  (in  their  view),  seems 
to  attach  to  such  unwarranted  change  of  the  legally  ascertained  vote  of 
a  county.    It  is  for  the  interest  of  the  contestant. 

The  contestee  claims  and  proves  that  a  large  number  of  illegal  votes 
were  cast  and  counted  for  contestant.  Contestant  sets  up  a  similar 
claim  as  to  a  small  number  of  votes  given  for  contestee,  but,  as  he  says 
in  his  brief,  "  has  taken  but  little  testimony."  Before  examining  into 
these  illegal  votes  upon  either  side,  we  shall  consider  the  recount  in 
Kanawha  County,  which  was  taken  under  the  following  provisions  of 
the  law  of  West  Virginia  as  to  the  duties  of  the  county  commissioners 
when  acting  as  a  canvassing  board : 

They  sball,  upon  the  den;and  of  any  candidate  voted  for  at  such  election,  open  and 
examine  any  one  or  more  of  the  sealed  packages  of  ballots  and  recount  the  same,  but 
in  such  case  they  shall  seal  up  the  same  again,  along  with  the  original  envelope,  in 
another  envelope,  and  the  clerk  of  the  county  court  shall  write  his  name  across  the 

Elace  or  places  where  it  is  sealed,  and  endorse  on  the  outside  :  Ballots  of  the  election 
eld  at ,  the  district  of ,  and  county  of ,  etc. 

THE  KECOUNT. 

Contestee  made  a  demand,  in  writing,  before  the  commissioners  of 
the  county  court  of  Kanawha  County  for  a  recount  of  the  ballots  cast 
at  said  election  at  all  the  precincts  of  said  county,  at  the  meeting  of 
said  commissioners  held  to  ascertain  the  result  of  said  election  in  said 
county  on  the  12th  day  of  November,  1888,  that  being  the  time  fixed 
by  law  for  the  ascertaining  and  certifying  of  the  result  of  the  election  in 
each  county.  On  this  day  the  said  court  took  charge  of  all  the  ballots 
cast  in  said  county,  and  the  election  of  contestee  was  then  conceded. 
The  said  commissioners  were  all  Kepublicans;  and  in  the  progress  of 
said  recount  their  actions  and  rulings  were  so  partisan,  corrupt,  and 
biased  in  favor  of  contestant  that  they  refused  to  allow  contestee  to 
appear  before  them  in  person  or  by  counsel.  They  denied  him  the 
process  of  the  court,  refused  to  permit  him  to  introduce  any  testimony, 
or  to  cross-examine  the  witnesses  who  were  put  upon  the  stand  to  tes- 
tify in  respect  to  the  regularity  of  the  returns  from  the  various  pre- 
cincts in  said  county.  And  they  further  refused  to  settle  and  sign  bills 
of  exceptions  certilying  their  illegid  and  partisan  action  aforesaid  until 
they  were  compelled  to  do  so  by  the  peremptory  writ  of  mandamus 
issued  by  the  supreme  court  of  appeals  of  the  State.  (See  record  in 
case  of  J.  D.  Alderson  vs.  Commissioners  of  County  Court  of  Kanawha 


m'ginnis  vs.  alderson. 


653 


County,  filed  in  this  case,  marked  "Eecord  No.  1,"  and  also  the  opinion 
of  the  supreme  court  of  appeals  in  said  case,  W.  Va.  Eep ,  vol.  31, 
p.  633.) 

After  the  said  order  of  the  supreme  court  made  in  said  case,  requir- 
ing said  commissioners  to  settle  and  sign  bills  of  exception  to  their 
rulings  in  making  the  recount  and  requiring  them  to  allow  contestee  to 
appear  by  himself  or  attorney  to  said  proceedings,  they  continued  their 
partisan  and  illegal  actions  and  committed  very  many  wrongs,  to  the 
prejudice  of  the  contestee,  in  ascertaining  the  result  of  said  election  in 
said  county  upon  his  demand  for  the  recount  aforesaid.  In  the  pre- 
cincts ivhere  the  recount  of  the  ballots  showed  gains  for  the  contestant,  they 
adopted  the  recount,  and  where  gains  were  made  for  the  contestee  they  re- 
eded the  recount  and  certified  from  the  poll-booJcs  rather  than  the  ballots. 

They  rejected  the  recount  of  the  ballots  at  St.  Albans  precinct  of 
said  county,  where  contestee  made  a  gain  of  one  vote  and  contestant 
sustained  a  loss  of  three  votes,  without  any  evidence  or  facts  appear- 
ing to  warrant  them  in  doing  so.  They  rejected  the  recount  at  Alum 
Creek  precinct,  where  contestee  made  a  gain  of  three  votes  and  con- 
testant sustained  a  loss  of  six  votes,  against  the  evidence  received  and 
considered  by  them  and  without  authority  of  law.  They  likewise  re- 
jected the  recount  at  Charleston  precinct,  where  contestee  made  a  gain 
of  twelve  votes  and  contestant  sustained  a  loss  of  thirteen  votes,  with- 
out any  evidence  to  sustain  them  in  their  action.  But  they  were  care- 
ful to  accept  the  recount  in  West  End  precinct,  where  contestee  sus- 
tained a  loss  of  two  votes  and  contestant  made  a  gain  of  two  votes;  iu 
Maiden  precinct,  where  contestee  sustained  a  loss  of  one  vote;  at 
Thaxton's,  where  contestee  sustained  a  loss  of  one  vote;  at  Field's 
Creek,  where  contestant  made  a  gain  of  one  vote ;  at  Clifton,  where 
contestant  made  a  gain  of  one  vote,  and  at  Cannelton,  where  contestee 
sustained  a  loss  of  one  vote.  All  of  the  facts  and  rulings  of  said  com- 
missioners, herein  referred  to  in  respect  to  said  recount,  are  contained 
and  set  out  in  Eecord  No.  2,  filed  in  this  case  (p.  41  to  86,  additional 
testimony). 

The  following  tabulated  statement,  as  appears  upon  page  36  of  said 
Eecord  No.  2,  shows  the  vote  as  it  was  certified  upon  the  poll-books 
from  each  and  every  precinct  in  said  county,  and  also  the  result  of  the 
recount  of  the  ballots  cast  at  said  precincts  made  by  said  commission- 
ers, as  hereinbefore  stated,  as  between  contestant  and  contestee : 


Precincts. 


Original  connt 

Recount. 

1 

1 

.2 

a 
a 

1 

U 

55 

14 

55 

153 

229 

151 

231 

264 

seo 

263 

320 

228 

234 

229 

231 

88 

163 

87 

163 

50 

141 

53 

138 

17 

77 

17 

77 

25 

40 

25 

40 

16 

20 

16 

28 

92 

70 

92 

70 

58 

40 

58 

40 

124 

104 

124 

104 

47 

69 

47 

96 

79 

88 

79 

88 

82 

211 

82 

2H 

69 

15 

69 

1& 

Upper  Pinch — 

West  End 

Maiden 

St.  Albans 

Thaxton's 

Alum  Creek  — 
Island  Branch  . 
Kendall's  Mills 

Dry  Kidge 

Biownstown ... 
Smith's  Creek . 

Coalbiirg 

Spring  Hill 

Lowiston 

Big  Sandy 

Kojley's  Creek. 


654 


M  GINNIS    VS.    ALDERSON. 


Precincts. 


Cross  Lanea 

Tyler  Creek 

Sissonville 

Conle.v's 

Shre  wabar  y 

Danaville 

Upper  Falls 

Field  CreeK 

Fairfield 

Clifton 

Kanawha  Mines  . . . 

PineGrove 

Cannelton 

City  of  Charleston. 

AldenCity 

Big  Chimney 

Poca  Fork 

Givons 


Original  connt. 


121 
60 
91 

101 
36 
52 
23 
49 
10 

113 
64 

100 
64 

840 
27 
74 
37 
52 


53 

44 

331 

179 

40 

154 

22 

179 

82 

134 

84 

82 

61 

864 

51 

162 

138 

110 


Total 3,329  I    4,658 


KeC'iUnt. 


121 
60 
91 

101 
36 
52 
23 
49 
19 

113 
64 

101 
63 

852 
27 
74 
37 
62 


53 
44 
334 
179 
40 
154 
22 
180 
82 
135 
8« 
81 
61 
R51 
50 
162 
138 
110 

4,638 


The  contestaDt  received  in  all  of  the  counties  of  said  district,  other 
than  the  county  of  Kanawha,  14,631  votes,  and  contestee  received  in 
same  counties  15,944  votes.  If  the  election  is  determined  in  Kanawha 
County  as  certified  upon  the  poll-books,  contestant  has  a  plurality  in 
the  district  of  16  votes.  If,  however,  it  is  determined  upon  the  recount 
of  the  ballots  cast  in  said  county,  then  contestee  has  a  plurality  of  16 
votes. 

Can  it  be  this  result  which  leads  the  committee  to  the  conclusion  that 
" such  recount  is  full  of  danger?"  There  were  two  precincts  in  which 
the  changes  were  largely  against  the  contestant.  The  changes  in  the 
other  precincts  were  in  his  favor  as  much  as  they  were  against  him. 
The  recount  in  those  is  not  attacked;  but  the  recount  in  Alum  Creek 
and  Charleston  is  objected  to  by  the  committee,  also  by  the  contestant. 
By  counting  the  ballots  the  county  commissioners  found  that  the  judges 
or  clerks  of  election  had  mistakenly  counted  3  votes  less  for  Alder- 
son  than  he  had  received  and  6  votes  more  for  McGinnis  than  he  had 
actually  received  at  Alum  Creek  precinct. 

In  the  same  way  we  learn  that  the  election  ofiBcers  in  the  Charles- 
ton precinct  had  erroneously  counted  12  votes  less  for  Aldei'son  than 
there  were  ballots  cast  for  him,  and  13  more  for  McGinnis  than  there 
were  ballots  cast  for  him.  An  examination  of  the  circumstances  under 
which  the  election  officers  made  their  count  will  show  that  such  mis- 
takes could  easily  have  occurred.  We  shall  draw  no  inference  from  the 
fact  that  two  of  the  judges  of  election  at  Alum  Creek  were  Kepublicans 
to  account  for  the  mistakes  there. 

But  we  here  call  attention  to  the  evidence  upon  the  matter  of  said 
recount. 

AT  ALUM  CEEEK  PRECINCT. 

It  appears  from  the  evidence  of  J.  B,  Holstein,  J.  0.  Holstein,  J.  W 
Goshorn,  W.  A.  GriflBtb,  and  VV.  McCorkle  that  the  said  W.  A.  Griffith, 
who  was  one  of  the  commissioners  of  election  at  Alum  Creek  precinct, 
was  drinking  and  under  the  influence  of  liquor  on  the  day  of  said  elec- 
tion while  ballots  were  being  received  by  him,  and  that  night,  while 
same  were  being  counted ;  that  there  was  whisky  in  bottles  and  in  a 


M'CflNNIS    VS.    ALDERSON.  655 

jug  there,  being  passed  around  generally  during  that  time ;  that  the 
ballot-box  at  that  precinct  was  opened,  contrary  to  law,  during  the  day 
while  ballots  were  being  received,  and  the  same  counted  on  certain  can- 
didates voted  for;  that  the  said  Griflfith  was  asleep  from  the  influence 
of  liquor  during  a  portion  of  the  night  when  the  ballots  were  being 
counted.     (See  Rec,  pp.  61,  172,  211,  191,  and  i94.) 

It  appears  from  the  evidence  that  on  the  morning  after  the  election 
-  the  said  GriflBth  took  the  package  of  ballots  which^  he  states,  were 
sealed  up,  put  it  in  one  end  of  a  sack  and  a  rock  in  the  other,  threw 
the  sack  across  a  horse,  and  rode  upon  the  same  12  miles  to  the 
city  of  Charleston  and  delivered  said  package,  so  sealed  up,  to  J.  W. 
Goshorn,  clerk  of  the  county  court  of  said  county.  This  certainly  af- 
forded an  opportunity  for  said  package  to  be  defaced  or  broken  open. 
And  the  evidence  further  shows  that  said  package  was  carefully  and 
properly  preserved,  with  all  the  other  packages  of  ballots,  until  same 
were  laid  before  the  commissioners  of  the  county  court  on  the  12th  day 
of  November,  1888;  that  the  said  commissioners  of  the  county  court 
then  and  there  took  all  the  packages  of  ballots,  including  the  package 
from  Alum  Creek,  and  placed  them  in  a  bag  and  carefully  tied  and 
sealed  up  the  same,  and  wrote  their  names  across  said  seal.  This  bag, 
under  the  directions  of  the  said  commissioners,  was  placed  over  the 
storm-door  to  the  clerk's  office  of  said  county  court.  It  further  appears 
that  said  bag  was  thrown  down  from  the  top  of  the  said  storm-door,  a 
distance  of  7  feet,  upon  the  stone  floor  in  said  clerk's  office,  several 
times  while  said  packages  of  ballots  were  still  in  said  bag. 

The  package  which  contained  the  Alum  creek  ballots  was  made  of 
thick  manilla  paper  of  the  same  kind  and  quality  as  the  one  filed  with 
the  proof  in  this  case.  Considering  the  character  of  the  package  and 
tha  manner  the  same  was  handled  while  in  said  bag,  it  is  not  improba- 
ble that  the  seal  was  broken  or  torn  by  reason  thereof,  especially  when 
the  proofs  show  that  same  was  not  well  sealed  by  the  precinct  com- 
missioners. When  the  commissioners  of  said  county  court  proceeded 
to  recount  the  ballots,  upon  the  demand  for  same,  which  was  about  ten 
days  after  they  were  returned  to  said  clerk's  office,  the  said  bag  was 
found  in  the  same  condition  in  which  it  was  left  when  first  sealed 
up,  with  the  seal  unbroken.  It  also  appears  from  the  evidence  that 
a  number  of  the  packages  of  the  ballots  from  various  precincts  in 
said  county  were  returned  to  said  clerk's  office  unsealed,  before  the 
Alum  Creek  package  was  so  received.  These  open  packages  were  never 
sealed  up,  except  in  the  bags  before  stated,  until  after  the  ballots  were 
recounted  by  the  commissioners  of  the  county  court. 

If  it  had  been  desired  by  any  one  to  tamper  with  any  of  the  ballots 
so  returned  to  said  clerk's  office,  it  is  unreasonable  to  assume  that  a 
sealed  package  would  have  been  broken  when  it  thus  appears  to  have 
been  unuecessary.  We  refer  to  the  depositions  of  J.  W.  Goshorn,  Joel 
S.  Quarrier,  and  W.  E.  G.  Gillison ;  also  to  the  deposition  of  J.  A.  Jones, 
pp.  159,  204,  and  203,  Record: 

When  the  vote  was  all  counted  it  was  near  daylight  in  the  morning. 

Were  these  ballots  properly  kept  until  they  were  recounted  by  the 
county  commissioners? 

The  law  provides  that  the  original  packages  shall  be  sealed  up  at 
the  place  of  voting,  as  follows : 

When  the  said  certificates  are  signed,  the  ballot  shall  be  inclosed  by  the  commis- 
sioners in  an  envelope,  which  they  shall  seal  up,  and  write  their  names  across  the 
place  or  places  where  it  is  sealed,  and  indorse  on  the  outside  of  the  said  envelope  as 

follows:  "  Ballots  of  the  election  held  at ,  in  the  district  of and  county 

of .  the day  of ,  etc. 


656  m'ginnis  vs.  alderson. 

As  soon  as  the  result  of  the  recount  was  discovered  to  be  adverse  to 
the  contestant,  his  political  Iriends  set  about  to  destroy  the  legal  effect 
thereof  by  questioning  the  care  taken  of  the  ballots  siuce  they  were 
miscounted.  The  three  precinct  commissioners  in  their  testimony  show 
that  the  ballots  were  put  on  a  string  as  they  were  taken  out  of  the  bal- 
lot-box; alter  the  vote  was  counted  the  ballots  were  put  in  an  envelope 
or  manilla  paper  box,  they  send  a  clerk  to  get  some  mucilage  to  seal 
this  box  up,  ai]d  do  seal  it  up  with  mucilage,  and  it  was  cared  for  and 
disposed  of  as  we  have  just  set  forth. 

The  circumstances  surrounding  the  disposition  of  thes  •  ballots  and 
the  preservation  of  them  is  such  as  might  ordinarily  occur  in  a  great 
many  precincts.  Nowhere  is  there  any  evidence  tending  to  show,  in 
any  degree,  that  the  ballots  were  tampered  with.  The  law  was  sub- 
stantially complied  with  up  to  the  hour  the  county  commissioners  took 
the  ballots  into  their  charge  and  possession — and  they  left  them  in  the 
custody  of  the  county  clerk.  This  county  clerk  was  a  Republican  and 
so  were  the  county  commissioners,  and  up  to  the  time  in  which  they  took 
possession  of  all  the  precinct  returns  the  election  of  contestee  had  not 
been  questioned;  rather  had  it  generally  been  accepted.  No  one  has 
testified  that  the  envelope  was  torn  open  when  these  county  commis- 
sioners came  to  make  their  recount.    Mr.  Jones  testifies  that— 

This  package  did  not  appear  to  have  been  torn  open.  It  showed  an  effort  had  been 
made  to  seal  it. 

Mr.  Goshorn,  the  Republican  clerk  (Rec,  193),  testifies  that — 

It  had  not  been  torn  open,  but  looked,  upon  close  examination,  like  it  had  been 
glued,  but  the  glue  did  not  stick. 

In  fact  the  package,  newly  mucilaged  and  carried  to  town  as  described, 
had  become  loosened,  or  from  the  subsequent  tossing  down  from  above 
the  storm-door  in  the  bag  with  thirty-two  other  packages,  had  pulled 
apart.  There  is  no  room  for  even  a  "  natural  suspicion  "  that  the  ballots 
from  Alum  Creek  had  been  tampered  with.  No  opportunity  is  shown 
for  it  to  have  been  done.  The  fourteenth,  fifteenth,  and  sixteentti  ques- 
tions to  J.  W.  Goshorn,  the  Republican  clerk,  and  his  answers  are  here 
given. 

Q.  14.  At  the  time  you  speak  of  the  returns  from  the  various  precincts  being  put 
in  the  sack  and  sealed  up  and  the  sack  placed  over  the  storm-door,  what  question 
was  there  about  the  election  of  Fleming  for  governor  and  Alderson  for  Congress  ? — 
A.  There  was  none  whatever,  as  we  had  not  heard  from  the  remote  or  back  counties, 
and  it  was  confidently  believed  that  Fleming  and  Alderson  were  both  elected  by  good 
and  safe  majorities,  and  not  until  the  returns  from  these  back  Democratic  coimtie*, 
where  the  Republicans  made  heavy  gains  and  this  changed  the  result,  which  was  ten 
da^s  after  the  election. 

Q.  15.  Were  you  present  when  the  sack  you  spoke  of  was  presented  to  the  county 
court  to  make  the  recount?  If  so,  state  in  what  condition  it  was?— A.  I  was;  it  was 
examined  by  the  court  and  the  attorneys,  and  they  decided  that  it  was  in  the  same 
condition  that  it  was  on  the  Monday  after  the  election,  as  the  seal  was  unbroken  and 
no  holes  in  the  sack  or  any  indication  of  any  having  been  made  in  the  sack. 

Q.  16.  Please  state  in  what  condition  the  package  from  Alum  Creek  precinct  was 
when  it  was  taken  out  of  the  sack  for  the  recount? — A.  The  red  string  or  tape  was 
tied  around  the  paper  box  ;  when  we  examined  the  box  closely  it  looked  like  there 
had  been  mucilage  or  glue  used  to  stick  it  together.  My  impression,  or  the  way  I  ac- 
connt  for  it,  was,  that  there  had  been  a  little  glue  put  on  and  had  not  had  time  to  dry, 
as  the  box  was  so  thick  that  the  mucilage  or  glue  would  not  stick  unless  it  was  per- 
fectly dry.  If  it  was  stuck  when  Mr.  Griffith  left  home,  the  ride  of  twelve  miles  horse- 
back, with  the  returns  in  one  end  of  sack  and  a  rock  in  the  other,  would  be  almost 
certain  to  break  the  box  open.  If  the  box  was  fastened  when  it  came  to  1  he  clerk's 
office,  the  simple  fact  of  putting  it  in  a  sack  with  32  others  would  make  a  weight  of 
about  60  pounds;  throwing  that  sack  up  aud  down  on  and  from  the  storm-door  on  to 
the  rock  floor  would  have  surely  broken  the  glue.  I  do  notthiuk  that  any  one  of  the 
33  packages  which  was  sealed  up  in  like  manner  as  the  Alum  Creek  package  was 


m'ginnis  vs.  alderson.  657 

claimed  to  be,  but  wbat  tbe  glue  or  mucilage  had  broken  loose.     Those  tliat  did  hold 
were  sealed  up  with  a  piece  of  paper  round  the  outside  of  the  envelope  or  box. 

Q.  17.  When  the  said  Alum  Creek  package  was  ])roduced  on  the  recount  was  the 
same  torn  open  or  did  it  appear  that  mucilage  or  glue  had  come  apart  ? — A.  It  had 
not  been  torn  open,  but  looked,  upon  close  examination,  like  it  had  been  glued  but 
the  glue  did  not  stick. 

CHARLESTON  PEECINCT. 

An  attempt  is  made  to  discredit  the  recount  of  the  vote  for  Congress^ 
man  at  Charleston  precinct  because  it  gives  Alderson  a  gain  of  12  and 
'McGinnis  a  loss  of  13.  Before  considering  the  claim  that  these  ballots 
were  not  preserved  in  the  manner  pointed  out  by  Jaw  let  us  see  how 
they  were  counted  by  the  precinct  commissioners  and  clerks  of  election, 
two-thirds  of  whom  were  Kepublicans. 

It  appears  that,  at  Charleston  precinct,  a  very  large  number  of  votes 
were  polled  at  said  election,  to  wit,  1,758 ;  that,  in  order  to  make  projier 
tally  of  all  persons  voted  for  at  said  precinct  at  said  election,  a  column 
was  kept  for  each  one  of  one  hundred  and  two  names  upon  tally-sheets, 
each  3^  feet  by  4  feet  in  size,  by  each  of  the  clerks  who  kept  said  tally. 
More  than  500  votes  having  been  polled  at  this  precinct,  it  was  unnec- 
essary, under  the  law,  to  wait  until  the  polls  were  closed  to  begin  the 
counting  of  the  vote,  and  about  8  or  9  o'clock  on  Tuesday  morning  of 
the  said  election  the  canvassers  and  clerks  commenced  to  count  this  said 
vote,  and  were  engaged  continuously,  without  intermission,  both  day 
and  night,  until  the  hour  of  11  o'clock  on  Friday  night  following  in  com- 
pleting said  count.  The  canvassers  who  read  the  ballots  were  old  men, 
and  most  of  them  required  the  use  of  glasses  to  aid  their  eye  sight.  The 
count  was  made  in  the  court-room  of  the  county  court-house,  which  was 
very  poorly  lighled,  there  beiug  in  the  night-time  what  was  called  a 
'Vcross- light."  That  it  is  probable  that  mistakes  were  made  by 'these 
canvassers  and  clerks  is  shown  by  the  fact  that  they  frequently  discov- 
ered each  other  in  so  doing.  They  necessarily  were  inaccurate  because 
of  their  loug  engagements,  growing  tired,  and  the  loss  of  sleep,  as  stated 
by  them. 

After  the  count  was  completed  the  ballots  were  strung  and,  to- 
gether with  the  tally-sheets,  were  placed  in  a  cake  or  cracker  box 
selected  for  the  purpose — it  having  been  necessary  from  the  bulk  made 
by  said  ballots  and  tally-sheets — and  the  box  nailed  up,  sealed,  and  iu- 
dorvsed  uy  said  commissioners  of  election  at  said  precinct,  as  required 
by  law.  The  box  was  procured  by  Joel  S.  Quarrier  from  S.  S.  Smith, 
a  clerk  in  the  store  of  A.  C.  Orcntt. 

The  only  ground  upon  which  the  rejection  of  the  recount  of  the  said 
ballots  can  be  justified  is  the  untenable  one  that  the  ballots  in  said  box 
so  sealed  up  were  tampered  with  after  the  same  were  placed  in  the- 
hands  of  the  clerk  of  said  county  court  and  before  the  same  were  laid 
before  the  said  commissioner's  of  the  county  court  on  the  12th  day  of 
November,  1888.  To  support  this  contention  an  eflbrt  is  made  to  prove, 
by  Thomas  Y.  Jarrett,  T.  J.  Rocky,  and  John  Slack,  jr.,  that  the  con- 
dition of  said  box,  when  the  same  was  laid  before  said  commissioners 
on  is'ovember  12,  1888,  was  difl'erent  from  what  it  was  when  the  said 
ballots  and  tally-sheets  were  placed  therein  on  the  Friday  night  pre- 
vious. 

Mr.  Jarrett  testified  (p.  65)   that  he  was  one  of  the  commissioners  at 
said  election;  that  he  looked  at  said  box  before  the  ballots  were  placed 
in  it;  that  it  appeared  to  be  sound;  did  not  notice  any  crack  or  chisel- 
mark  on  the  bottom  thereof,  but  declined  toistate  that  the  condition  of 
H.  Mis.  137 42 


658  M^GINNIS   VS.    ALDERSON. 

tbe  box  was  changed.  Mr.  Rocky  (p.  73)  testified  that  he  examined 
the  box  before  the  ballots  were  put  in  it ;  that  the  box  was  turned  up- 
side down ;  he  discovered  no  delects  in  box,  and  considered  it  in  good 
condition;  that  the  other  canvassers  and  commissioners  examined  the 
box  at  the  same  time  and  appeared  to  be  satisfied  with  its  condition; 
that  none  of  them  mentioned  the  discovery  of  any  defects ;  that  the 
next  time  he  saw  th&  box  was  when  he  was  summoned  before  the 
commissioners  of  the  county  court  to  testify  in  regard  to  tbe  condition 
of  the  box,  when  they  were  making  the  recount.  This  witness  «iidn't 
think  the  box  was  in  same  condition  then  as  when  ballots  were  put  in 
it;  that  a  board  on  bottom  of  box  was  split;  there  were  three  indent- 
ures, as  if  made  by  chisel  or  other  instrument  in  attempt  to  pry  board 
off"  of  bottom  of  box  ;  direction  of  split  in  board  corresponded  with  direc- 
tion of  pressure  as  indicated  by  indentures.  Ou  cross-examination  (p. 
75)  the  following  question  was  propounded  to  witness,  who  made  the 
subjoined  answer  thereto : 

Question  20.  Did  ,vou  uot  state  on  your  examination  before  the  county  court,  in 
answer  io  a  question  as  to  the  condition  of  said  box,  that  you  had  not  made  an  ex- 
amination of  tbe  box  and  couhl  not  say  whether  said  marks  were  on  said  box  at  said 
time  or  not,  or  words  to  that  effect?  —Answer.  I  believe  I  stated  before  the  county 
court  that  I  did  not  turn  the  box  over  myself,  but  that  some  one  else  did  ;  that  1  saw 
the  box  ;  that  I  thoufjht  the  box  in  good  condition  ;  that  I  noticed  no  split  or  defect 
in  the  box.  I  may  have  stated  that  the  chisel-marks  might  have  existed  at  that  time 
and  I  not  have  noticed  them. 

INlr.  Slack  (p.  76)  testifies  that  he  examined  box  at  time  of  recount; 
it  had  every  appearance  of  bottom  being  taken  off ;  marks  of  chisel  that 
had  pried  bottom  off  were  plain  to  be  seen;  nails  had  every  appear- 
ance r*'^" having  been  taken  out  and  driven  back;  a  small  splinter  had 
been  brokerj  loose,  evidently  done  when  bottom  was  taken  off*. 

The  testimony  of  T.  J.  Hocky  is  not  to  be  relied  upon  in  this  case. 
He  tas  impeached  himself  by  his  own  statements,  independent  of  the 
evidence  on  that  subject  to  which  we  will  hereafter  call  attention.  It 
appears  he  was  summoned  before  the  commissioners  of  the  county 
court  ot  said  county  when  they  were  engaged  in  making  said  recount 
on  the  6th  day  of  December,  1888,  and  testitied  as  follows: 

Q.  Did  you  examine  the  box  in  which  the  ballots  were  put  ? — A.  I  did  not  examine 
the  box. 

Q.  Did  not  examine  the  bottom  of  it  ? — A.  No,  sir;  I  did  not.  (See  Record  No. 
2,  pp.  07,  C8.) 

The  foregoing  is  all  the  testimony  of  the  said  Rocky  given  before 
said  commissioners  with  reference  to  his  examination  of  said  box. 

He  testifies  emphatically  before  the  commissioners  that  he  did  not 
examine  said  box  before  the  ballots  were  put  in  it;  yet  he  testifies  in 
this  case  that  he  did  make  such  examination,  and  in  his  answer  to  ques- 
tion No.  .:0  of  his  cross-examination  he  stated  what  must  be  construed 
to  mean  that  he  formerly  testified  that  he  did  make  such  examination. 

On  page  365  of  record  J.  A.  Hutchison  testifies  that  he  was  the  sten- 
ographer who  took  the  testimony  of  the  said  Rocky  given  before  said 
comniissioners  with  reference  to  the  condition  of  said  box  before  the 
ballots  were  placed  therein.    We  quote  from  said  Hutchison's  testimony: 

Q.  6.  Was  he  asked  as  such  witness  (meaning  said  T.  J.  Rockey)  in  respect  to  box 
in  which  the  ballots  cast  at  Charleston  precinct,  in  said  county,  were  placed  by  the 
election  commissioners  of  said  precinct  after  said  ballots  had  been  strung  by  Ihe'in  ? — 
A.  He  was. 

Q.  7.  What  did  he  say  in  respect  to  the  condition  of  the  box?  -A.  He  said,  "I  did 
not  examine  the  box  or  the  bottom  of  it  before  the  ballots  were  placed  in  it,"  or  after 
they  were  placed  la  it,  and  before  the  box  was  delivered  to  the  county  conrt  clerk  of 
Kanawha  County. 


m'ginnis  vs.  aldeeson.  659 

James  A.  Mahan  testified  in  this  case  (p.  209)  that  he  was  one  of  the 
canvassers  of  said  election  at  Charleston  precinct ;  that  Joel  S.  Quarrier 
brought  the  box  into  the  court-house  in  which  said  ballots  were  placed; 
that  he  was  the  only  one  of  the  election  officers  who  took  hold  of  the 
box  before  the  ballots  and  tally-sheets  were  placed  thereiu,  but  that 
no  examination  whatever  was  made  of  the  box  by  any  one  after  the  box 
was  brought  in  and  before  the  ballots  were  put  in  it;  and  that  he 
examined  box  at  the  time  the  said  commissioners  of  the  county  court 
were  taking  testimony  about  it  and  saw  no  difference  in  its  condition 
then  than  when  it  was  brought  into  the  court-house  by  Air.  Quarrier. 

Here  is  a  witness  directly  contradicting  Rocky. 

E.  M.  Seuter,  J.  D.  Shumate,  and  I.  E.  Christian,  on  pages  426-429, 
all  testify  that  they  are  acquainted  with  the  general  reputation  of 
Baid  Rocky  for  truth  and  veracity,  and  from  that  reputation  would 
not  believe  him  on  oath.  It  appears  from  the  evidence  of  A.  P.  Fry, 
J.  D.  White,  James  H.  Fry,  and  J.  A.  Jones  that  said  Rocky  did  not 
make  the  examination  of  the  box,  as  stated  by  him  before  the  ballots 
were  put  in  it. 

Mr.  Rocky  is  shown  to  have  been  a  Republican  at  the  time  of  said 
election ;  so  partisan  in  his  friendship  for  contestant  in  this  contest 
that,  although  not  a  public  officer,  he  traveled  many  miles  to  serve  no- 
tices upon  contestee  to  take  depositions  in  this  case.  Under  this  state 
of  facts  is  it  not  fair  to  assume  that  Mr.  Rooky's  testimony  in  this  case 
is  whollyiinreliable  and  should  be  disregarded;  and  in  view  of  the 
fact  that  Mr.  Slack  states  in  his  deposition,  exultingiy,  that  he  was  a 
Republican  and  devoted  his  time  solely  for  ten  days  prior  to  the  elec- 
tion in  the  interest  of  the  Republican  party,  that  he,  too,  may  have 
been  somewhat  biased  in  his  statement  in  reference  to  said  box?  But, 
even  if  his  statement  is  true,  it  by  no  means  proves  that  the  condition 
of  the  box  was  changed.  He  had  never  seen  the  box  until  during  the 
recount. 

But  the  testimony  of  unimpeached  witnesses  entirely  destroys  the 
last  vestige  of  this  subterfuge  to  avoid  the  recount  of  Charleston  i)re- 
cinct. 

J.  W.  Goshborn  deposes  and  says : 

A.  When  they  got  thro'  counting  on  Friday  night  about  11  o'clock,  after  the 
election,  Mr.  Quarrier,  my  deputy  clerk,  got  a  cake  or  cracker  box  from  Mr.  Orcntt's 
store,  across  the  street  from  the  court-house,  and  the  ballots  and  tally-sheets  were 
put  into  that  box ;  Mr.  Quarrier  took  charge  of  the  box  and  put  it  iu  the  corner  of 
the  back  room  of  the  clerk's  oflSce  and  covered  it  over  with  some  papers,  and  there 
it  staid  until  it  was  put  into  the  strong  wooden  box  we  had  made  to  keep  all  the 
ballots  in,  which  was  about  three  days  afterwards. 

Q.  25.  Please  state  how  the  said  cake  or  cracker  box  in  which  said  ballots  and 
tally-sheets  were  kept  was  secured  ? — A.  There  was  a  piece  of  paper  pasted  over  it 
and  sealed,  with  the  commissioners'  names  written  across  it,  and  it  was  never  broken 
until  the  county  court  commenced  the  recount,  when  they  broke  it. 

Q.  26.  Please  state  whe  ■  you  first  heard  the  charge  made  that  said  box  had  been 
tampered  with,  and  from  whom  did  it  i)roceed? — A.  The  morning  after  the  recount 
was  completed  ;  I  could  not  find  out,  as  it  was  talked  about  by  irresponsible  Kepnb- 
licans;  when  I  heard  there  was  an  intimation  of  that  kind  I  inquired  of  Mr.  Quarrier 
where  he  got  the  box.  He  told  me  that  he  got  it  across  the  street,  from  Mr.  Orcntt's 
store;  I  went  across  the  street  and  got  Mr.  Orcutt  and  Mr.  Smith,  his  clerk,  from 
whom  the  box  was  procured,  and  we  examined  the  box ;  they  both  stated  that  there 
was  no  indications  that  the  box  had  been  tampered  with.  Mr.  Smith  stated  tbat  the 
wholesale  houses  were  in  the  habit  of  opening  that  kind  of  box  from  the  Ijottom  to 
sample,  as  the  top  was  put  on  with  hinges  and  nailed.  We  went  over  to  Mr.  Orcutt's 
ofiBce  and  examined  a  box  of  the  same  make  aud  from  the  same  iirm,  wliich  was  split 
in  identically  the  same  place  as  the  ballot-box.  I  went  to  Messrs.  Cunningham  and 
Staunton,  two  of  the  county  commissioners,  and  told  them  that  some  irresponsible 
ecamps  were  intimating  that  the  ballot-box  had  been  taiupered  with  iu  my  office,  and 


660  m'ginnis  vs.  alderson. 

that  I  wauted  them  to  put  Mr,  Quarrier,  Mr.  Orcutt,  aud  Mr.  Smith  on  the  staiid,  as 
they  would  testify  that  the  bos  was  in  the  sa'iie  condition  as  it  was  when  they  gave 
it  to  Mr.  Quarrier.  They  both  told  me  that  it  wasn't  necessary,  as  they  would  pass 
a  resolution  exonerating  nie  and  my  office  from  all  bla  ■  e. 

Q.  27.  Were  you  present  in  the  court-honse  when  the  said  box  was  brought  over 
from  Mr.  Orcutt's  store  and  the  ballots  placed  in  it  ? — A    Yes,  sir  ;  I  was. 

Q.  28.  What  examination  was  made  of  that  box  by  any  person  interested  before  the 
ballots  were  placed  in  itf — A.  Mr.  Quarrier  brought  the  bos.  set  it  down  on  the 
court-house  floor,  Mr.  Mahau  picked  up  the  box  and  turned  it  over  and  ^et  it  down 
again;  Mr.  White  aud  Mr.  Jarrett  looked  in  the  box;  the  tally-sheets  and  ballots 
were  put  in,  I  think,  by  Mr.  Jarrett;  there  was  no  critical  examination  of  tbat  box  by 
anyone,  as  it  was  nearly  12  o'clock,  and  the  commissioners,  canvassers,  aud  clerks 
had  been  working  for  four  days  and  nights  aud  were  anxious  lo  get  home  aud  get  some 
rest. 

Q.  29.  In  what  way  was  it  charged  that  said  box  had  been  tampered  with? — A. 
There  never  was  any  charge  that  the  box  had  been  tampered  with,  but  there  were 
intimations  from  irresponsible  scamps  that  part  of  the  bottom  had  been  taken  oil'. 

Q.  30.  Please  state,  after  such  intimations  were  made,  if  you  noticed  any  marks 
or  splits  on  the  bottom  of  the  box  ;  if  so,  state  what  they  were  ?— A.  The  bottom  of 
the  box  had  either  two  or  tbree  (I  think  three)  planks  in  it,  and  one  of  the  planks 
was  split.  I  am  of  the  impression  this  was  caused  by  the  sun,  or  a  sun  crack,  as  I  do 
not  believe  that  plauk  could  be  taken  oil"  without  splitting  out  the  nail  holes,  as  the 
plank  is  very  thin  and  the  nails  are  very  close  to  the  edge. 

Q.  31.  Was  there  any  signs  of  freshness  about  the  splits! — A.  None  whatever. 

Joel  S.  Quarrier,  another  witness  of  lawful  age,  being  first  duly- 
sworn,  deposes  aud  says : 

Q.  1.  (ByM.  Jackson,  attorney  for  J.  D.  Alderson.)  State  your  name,  age,  resi- 
dence, and  occupation. — A.  JoelS.  Quarrier;  57  years;  Charle.stoa,  W.  Va. ;  deputy 
clerk  county  court. 

Q.  2.  Please  state  if  yon  were  employed  in  the  county  clerk's  office  at  the  time  of 
the  election,  November  (5th,  188B,  and  how  long  you  have  been  employed  there  ? — A.^I 
was  so  employed  at  the  time  of  said  election,  and  have  been  in  the  office  about  two 
and  one-balf  years  as  deputy  clerk. 

Q.  9.  Please  state  if  your  attention  was  called  to  the  box  in  which  were  placed  the 
ballots  cast  at  the  Court-Honse  precinct.  If  so,  when,  and  in  what  condition  did  you 
find  it? — A.  My  attention  was  called  to  it  after  the  recount  was  had  ;  am  not  sure 
that  I  knew  the  ballots  were  in  a  box  before  that  time.  I  found  it  all  right,  appar- 
ently, except  tJiat  there  seemed  to  be  a  small  abrasure'or  something  on  one  side  of  it 
or  the  bottom,  which,  in  my  opinion,  did  not  amount  to  anything;  one  of  (he  planks 
in  the  bottom  was  cracked  or  split,  which  did  not  seem  to  be  of  recent  date;  the 
pieces  or  plank  of  the  box  seemed  to  be  all  well  nailed,  as  far  as  I  observed ;  the  plauk 
at  one  end  of  the  box,  by  reason  of  its  thinness  and  not  being  nailed  near  the  end  as 
it  should  have  been,  seemed  to  have  sprung  a.  little  and  left  a  small  crack,  increased, 
I  have  no  doubt,  by  frequent  manipulations  of  prying  fingers,  as  I  saw  many  persons 
examining  the  place  with  their  fingers. 

Q.  10.  Did  you  see  any  signs  of  freshness  about  the  abrasure  you  speak  of,  or  split, 
or  anything  suspicious  in  the  appearance  of  the  box? — A,  I  did  not. 

Q.  19.  What  have  you  to  say  as  to  the  truth  of  the  evidence  of  one  W.  A.  Forsythe, 
giveu  in  this  cause,  about  seeing  said  Montague  engaged  after  night  in  said  office  on 
said  work,  and  the  statements  made  by  him  in  counection  therewith?— A.  I  have 
read  the  statements  made  by  said  Foisythe,  and 'know  that  the  same  is  an  infamous 
lie. 

Q.  20.  Did  you  in  any  manner  change,  alter,  or  tamper  with  the  ballots  or  election 
returns  of  said  election,  or  do  you  know  of  any  one  who  did,  or  have  you  any  reason 
to  believe  the  same  were  changed,  altered,  or  tampered  with? — ^A.  I  did  not,  and 
know  of  no  person  who  tampered  with  the  ballots  of  said  election.  I  have  no  reason 
to  believe  they  were  tampered  with,  from  the  fact  that  I  was  in  said  office  every  day 
and  night  during  the  period  from  the  election  to  the  end  of  the  recouut. 

Q.  21.  Did  you  get  the  box  in  which  were  placed  the  ballots  cast  at  the  Court-House 
voting  precinct;  if  so,  from  whom  did  you  get  it? — A.  I  got  it  from  A.  C.  Orcutts.  at 
his  store,  which  is  opposite  the  court-house,  and  delivered  the  same  to  the  commis- 
sioners of  election  on  Friday  evening  after  the  election;  I  assisted  in  placing  in  said 
box  the  ballots  aud  tally-sheets;  I  sealed  it  securely  with  mucilage  (it  being  a  box 
with  a  lid),  and  the  same  was  delivered  to  me  in  said  clerk's  office  by  T.  Y.  Jarrett, 
one  of  the  officers  of  the  election. 

Q.  22.  What  examination,  if  any,  was  made  of  said  box  before  said  ballots  and 
tally-sheets  were  placed  in  it? — A.  Some  of  the  officers  examined — turned  it  over  to 
got  some  dirt  out  of  it — but  I  made  no  examination  of  it. 


m'ginnis  vs.  alderson,  061 

A.  p.  Fiy  testifies  that  he  was  present  wheu  the  box  was  broijglit 
into  the  court-house  by  Mr.  Quarrier;  that  no  special  exauiination  was 
made  of  it  by  any  one  before  the  ballots  were  put  in  it,  and  that  it  was 
sealed  up  aud  delivered  to  the  clerk ;  that  his  attention  was  called 
to  the  box  while  the  county  commissioners  had  it  under  examination, 
and  it  seemed  to  be  in  ihe  same  condition  it  was  when  he  first  saw  it; 
that  he  saw  no  evidence  that  it  had  been  tamjiered  with,  or  anything 
to  raise  a  suspicion  of  that  kind  (p.  206). 

The  evidence  of  Mr.  Fry  in  this  matter  is  corroborated  by  the  evi- 
dence of  J.  H.  Fry,  J.  D.  White,  and  J.  A.  Jones  (pp.  159,  210,  217). 

The  true  explanation  of  the  condition  of  said  box  is  that  it  appears 
to  have  been  a  cracker  or  cake  box.  It  was  the  custom  or  habit  of 
dealers  in  that  class  of  goods  to  open  such  boxes  on  the  bottom  for  the 
purpose  of  sampling  the  goods  therein,  aud  it  was  evidently  done  so 
with  this  box  before  the  ballots  were  first  placed  in  it,  as  is  fully  ex- 
plained by  the  depositions  of  A.  0.  Urcutt,  S.  S.  Smith,  aud  S.  M.  Snj^- 
der,  here  copied  from  record  in  this  case. 

A.  0.  Orcutt,  another  witness  of  lawful  age,  and  for  contestee,  being 
first  duly  sworn,  deposes  and  says: 

Q.  2.  (By  M.  Jackson,  counsel  for  J.  D.  Alderson.)  State  your  name,  age,  resi- 
dence, and  occupation. — ^A.  A.  C.  Orcutt;  near  Charleston,  W.  Va.;  44  years;  mer- 
chant and  timber  dealer. 

Q.  2,  Pleaso  state  where  you  were  doing  business  at  the  time  of  the  election  held 
in  Kanawha  County  on  the  6th  of  November,  1888. — A.  At  205  Kanawha  street, 
Chai-leston,  W.  Va.,  opposite  the  old  court  house. 

Q.  3.  State  who  furnished  the  box  in  which  were  placed  the  tally-sheets  aud  bal- 
lots cast  at  the  Court-House  precinct  at  said  election. — A.  It  was  furnished  from  my 
store. 

Q.  4.  Who  was  your  clerk  at  that  time  ? — A.  S.  S.  Smith  aud  W.  A.  Mahan. 

Q.  5.  Please  state  what  kind  of  a  box  it  was  and  where  it  came  from  ? — A.  It  was 
a  cracker  or  cake  box,  and  it  came  from  my  store. 

Q.  G.  Please  describe  said  box,  and  where  you  kept  your  empty  boxes. — A.  It  was 
a  box  with  lid  fastened  on  with  hinges  ;  empty  boxes  were  usually  kept  in  cellar  un- 
der store. 

Q.  7.  State  if  your  attention  was  called  to  said  box  after  it  was  said  to  have  been 
tampered  with.  If  so,  where  and  in  what  condition  did  you  find  itf— A.  It  was  at 
the  clerk's  ofQce  of  Kanawha  County.  I  saw  nothing  about  the  box  that  would 
arouse  my  suspicions  that  it  had  been  tampered  with. 

Q.  8.  State  if  your  attention  was  called  to  any  splits  or  marks  on  the  bottom  of 
said  box.  If  so,  what  were  they  ? — A.  I  saw  a  split  in  the  bottom  of  the  box ;  it  was 
split  clear  across  the  bottom;  it  was  an  ordinary  split  in  the  wood;  I  saw  what  they 
said  was  the  mai'ks. 

Q.  9.  Did  you  see  any  signs  of  freshness  about  the  split  or  mark  spokeu  of? — A.  I 
did  uot;  nothing  that  would  arouse  my  suspicions,  for  I  went  immediately  across  to 
my  store  and  examined  a  box  of  the  same  kind,  aud  found  identically  the  same  split 
and  marks  on  it. 

Q.  ll).  Please  state,  if  you  can,  from  your  own  knowledge  of  the  trade,  how  such 
splits  and  marks  happen  in  thooe  boxes  ? — A.  I  think  it  was  from  sampling  or  exam- 
ing  the  contents  of  the  box  before  shipping,  by  the  wholesaler  or  dealer. 

Q.  11.  Pleasestatetheobject  of  sampling  from  the  bottom? — A,  In  order  to  save  the 
lid,  which  is  put  on  Avith  hinges. 

Q.  12.  Jlr.  Orcutt,  if  you  have  no  objection,  will  you  please  state  your  politics  ?— 
A.  I  am  a  Republican. 

S.  S.  Smith,  another  witness  of  lawful  age  and  for  the  contestee,  be- 
ing first  duly  sworn,  deposes  and  says : 

Question  1.  (By  M.  Jackson,  attorney  for  Alderson).  State  your  name,  age,  resi- 
dence, and  occupation. — A.  S.  S.  Smith;  age,  37;  State  of  Ohio;  in  mercantile bns- 
ness. 

Q.  2.  (By  same.)  State  what  occni)ation  ypu  were  engaged  in,  and  where,  at  the 
time  of  the  election  held  in  Kanawha  County  on  the  6th  day  of  November,  1888? — 
A.  I  was  here  in  Orcutt's  store. 

Q.  3.  State,  if  you  know,  who  furnished  the  box  in  which  were  placed  the  tally- 
sheets  and  ballots  cast  at  the  Court-House  piecinct  at  said  election  ?— A.  I  furnished 
the  box  to  Joel  S.  Quarrier. 


662  M*GINNIS   VS.    ALDERSON. 

Q.  4.  Please  state  what  kind  of  a  box  it  was  and  where  you  got  it  1 — A.  It  was  a 
cake  box  ;  I  got  it  out  of  the  cellar  under  the  store-room. 

Q.  5.  Please  describe  the  size  of  the  box,  the  kind  of  material,  and  its  construction. — 
A.  It  was  about  2  feet  long,  ten  or  twelve  inches  deep,  about  twelve  or  fourteen 
inches  wide,  made  of  poplar  lumber ;  the  plank  was  about  i  of  inch  thick,  and  the  lid 
was  put  on  with  hinges  and  when  the  box  was  lilled  with  cakes  the  lid  was  nailed 
down, 

Q.  6.  Please  state  if  your  attention  was  called  to  said  box  after  it  was  charged  it 
had  been  tampered  with ;  if  so,  when  and  where  aud  in  what  condition  did  you  find 
it  ?— A.  Yes;  my  attention  was  called  to  it  a  short  time  after  the  polls  were  counted ; 
a  day  or  two  after  it  was  reported  the  box  had  been  tampered  with.  I  suppose  it  was 
in  the  clerk's  office.  My  attention  was  called  to  some  marks  on  the  box  that  looked 
like  it  had  been  made  with  an  edged  tool,  and  a  split  in  the  bottom  of  the  box  which 
was  nothing  more  than  a  wind-shake  in  the  plank  in  the  bottom  of  the  box  of  which 
it  had  been  made.  The  marks  to  which  my  attention  was  called  that  looked  like  they 
had  been  made  with  an  edged  tool  were  old  marks.  I  saw  nothing  suspicious  about 
the  box. 

Q.  7.  Did  you  observe  any  signs  of  freshness  about  the  split  you  mention? — A.  No, 
sir. 

Q.  8.  State  if  you  made  any  comparison  of  the  said  box  with  any  other  box? — A. 
Yes,  sir;  I  went  to  the  cellar  and  got  another  box  of  same  size,  made  of  same  mate- 
rial, made  by  the  same  company  or  manufacturers,  and  had  been  filled  with  cakes  by 
the  same  cake  company;  it  had  the  same  marks  between  the  edge  of  the  bottom 
plank  and  the  lower  edge  of  the  en«t  plank,  aud  the  same  crack  in  the  bottom  of  the 
box  as  the  box  to  which  my  attention  was  called. 

S.  M.  Snyder,  a  witness  in  this  cause,  being  first  duly  sworn,  deposes 
and  says : 

Q.  1.  (By  M.  Jackson.)  Was  your  attention  ever  called  to  the  box  in  which  were 
put  the  ballots  and  tally-sheets  of  the  election  held  at  the  Court-Honse  precinct  at 
the  election  held  November  6th,  1888,  after  it  was  said  to  have  been  tampered  with? — 
A.  Yes.  On  the  niomiug  after  the  ballots  were  placed  in  the  clerk's  office  I  went  over 
and  examined  the  box  carefully  ;  the  splits  were  old,  and  it  would  have  been  impos- 
sible to  have  drawn  the  nails  in  the  ends  of  the  box  without  splitting  the  boards. 
There  was  a  mark  in  the  end  of  the  box  as  though  made  by  some  sharp  instrument, 
but  the  mark  looked  old;  nothiug  fresh  looking  about  it. 

Q.  2.  Did  you  see  anything  suspicious  looking  or  uuusual  about  said  bos? — A.  I 
did  not. 

Q.  3.  Please  state  what  kind  of  a  box  that  was? — A.  Cracker  or  cake  box. 

Q.  4.  Have  you  ever  been  in  the  grocery  business? — A.  Yes;  about  two  years. 

Q.  f^.  Please  state  in  what  manner  boxes  filled  with  cakes  or  crackers  are  sam- 
pled?— A.  I  understand  they  are  sampled  from  the  bottom,  in  order  not  to  disfigure 
the  appearance  of  the  goods,  aud  that  they  may  open  up  nicely. 

See  also  tlie  deposition  of  James  B.  Fry,  p.  210. 

At  the  time  the  commissioners  of  tlie  county  court  took  chargo  of  the 
ballots  returned  to  the  said  clerk's  office,  viz,  on  Monday,  November 
12,  1888,  the  result  of  the  election  in  the  other  counties  of  the  Congres- 
sional district  was  not  known  at  Charleston. 

Mr.  J.  W.  Goshorn  testifies  (p.  193): 

We  had  not  heard  from  the  remote  or  back  counties,  and  it  was  confidently  be- 
lieved that  Fleming  and  Alderson  were  both  elected  by  good  and  safe  majorities. 
There  was  no  question  about  the  election  until  the  returns  came  in  from  these  back 
Democratic  counties,  where  the  Republicans  made  heavy  gains,  which  was  ten  days 
after  the  election.  Mercer  and  McDowell  Counties  bad  for  years  been  largely  Demo- 
cratic.   No  one  could  anticipate  the  results  in  those  counties. 

It  is  apparent,  then,  that  prior  to  November  12,  1888,  no  one  could 
have  had  any  possible  motive  for  tampering  with  the  ballots,  nor 
could  any  one  possibly  guess  how  much  of  a  change  would  be  required 
to  affect  the  result  in  the  district. 

It  will  be  observed  that  no  officer  or  officers  who  had  possession  of 
said  box  and  ballots,  after  the  same  were  sealed  up  and  delivered  to 
the  county  clerk,  were  political  friends  of  or  belonged  to  the  same  po- 
litical party  as  the  contestee.  The  clerk  aud  his  two  dei)uties,  all  Ke- 
publicaus,  testify  that  there  was  no  opportunity  for  the  ballots  to  be 
tampered  with. 


m'ginnis  vs.  alderson.  663 

Charleston  preciuct  was  the  last  to  be  recounted.  The  completion  of 
this  recount  disclosed  that  the  contesteehad  received  a  plurality  of  all  the 
votes  cast  for  Eepresentative  in  Congress  lor  that  district.  When  the 
partisan  and  corrupt  county  commissioners  found  that  contestee  was 
elected  they  began  to  look  around  for  some  pretext  to  deny  him  the 
result  of  said  recount.  The  subterfuge  resorted  to  as  to  Alum  Creek 
would  not  sufficiently  help  them.  At  this  point  the  old  marks  on  the 
box  were  discovered,  and  that  was  enough.  When  this  contest  was 
brought  in  the  evidence  to  sustain  contestant  is  found  in  this  statement : 

W.  A.  Forsythe,  being  duly  sworn,  deposed  as  follows: 

Question  1.  State  your  name,  residence,  and  occupation. — Answer.  W.  A,  Forsythe ; 
Charleston,  W.  Va. ;  lumbermaa. 

Question  2.  State  where  you  were  on  or  about  Nov.  6th,  1888,  and  what  precau- 
tions, if  any,  were  taken  to  protect  the  ballots  and  poll-books  of  Charleston  precinct 
and  Kanawha  County,  by  the  county  court  of  said  county  or  by  any  one  else,  after 
the  said  general  election  of  Nov.  6th,  188rf,  and  to  prevent  fraud  and  tampering  with 
the  returns  of  said  election  for  said  county.  State  in  this  connection  all  you  may 
know  about  the  same. — ^Answer.  I  was  in  Charleston  during  the  election  and  the  day 
after  election.  I  think  I  suggested  to  several  Republicans  the  propriety  of  se- 
lecting a  Republican  and  a  Democrat  to  take  charge  of  the  returns  from  the  several 
precincts  of  Kanawha  County  until  the  county  court  met  and  not  permit  the  said  re- 
turns to  go  into  the  hands  of  the  county  clerk,  for  tear  that  he  might  tamper  with  or 
deface  them ;  that  I  talked  the  matter  over  from  the  day  after  election  uutil  the  next 
Friday.  On  Friday  I  was  solicited  to  keep  a  watch  on  the  clerk's  office  that  night. 
On  that  night  I  went  down  to  the  clerk's  office  not  far  from  seven  o'clock  iu  the  even- 
ing, where  I  3aw  the  clerk,  Joel  S.  Quarrier,  and  deputy  clerk,  Phil.  Montague,  and 
a  man  I  did  not  know,  all  in  the  office.  About  half  past  seven  o'clock  the  man  I  did 
not  know  and  Mr.  Gashorn  left  the  office.  Mr.  Quarrier  and  Mr.  Montague  stayed  on 
until  nine  o'clock  or  after,  when  Mr.  Quarrier  left,  leaving  Mr.  Montague  alone  in 
the  office.  .  Mr.  Montague  closed  the  blinds  of  the  office,  except  one  blind  which  he 
left  open  for  a  space  of  two  and  a  half  or  three  inches  wide.  Sir.  Montague  sat  at  a 
table  in  the  south  room  of  the  clerk's  office  and  seemed  to  be  copying  from  a  book  of 
record  which  he  had  before  him  on  the  table.  He  continued  at  this  until  perhaps  ten 
o'clock  or  after,  when  he  did  something  with  the  book,  took  it  out  of  sight.  He  got 
up  and  went  to  the  south  side  of  the  room.  I  didn't  see  him  when  he  again  returned 
to  the  table,  until  after  he  had  returned  and  sat  down.  When  I  again  saw  him  sit- 
ting at  the  table  he  had  several  packages  of  papers  which  feeemed  to  be  different  in 
size  and  shape  from  other  packages  which  were  lying  on  the  table  when  I  first  saw 
him  sitting  at  the  table.  He  was  examining  the  first  packages  spoken  of  and  had  a 
pen  or  a  pencil  in  his  hand.  He  examined  two  or  three  packages.  He  finally  got  up 
and  shut  the  blind  so  I  could  see  nothing  more  except  to  distinguish  a  light  in  the 
room.  The  light  continued  to  show  until  eleven  o'clock  or  after.  I  watched  the  next 
evening  (Saturday)  until  three  o'clock  in  the  morning.  I  saw  nothing  worthy  of  ob- 
servation.    This  is  all  I  know.     I  may  state  more  fnlly  on  cross-examination. 

This  witness  is  totally  discredited  in  every  way  possible  to  destroy 
the  credibility  of  a  man. 

First.  Several  reputable  citizens  each  testify  that  they  are  acquainted 
with  his  reputation  for  truth  and  veracity  in  the  neighborhood  where 
he  resides ;  that  it  is  bad,  and  that  he  would  not  believe  him  (Forsythe) 
under  oath  because  of  such  bad  reputation.  (See  Kec,  pp.  151),  160, 1(52, 
165,  196,  '205,  210,  212.) 

Second.  Upon  cross-examination  he  is  asked  to  tell  to  whom  he  made 
known  the  discoveries  of  the  night.  He  answers  Colonel  Patton,  who 
was  acting  as  attorney  for  some  of  the  Republican  caudidates,  and 
then  admits  that  Colonel  Patton  testified  he  did  not  remember  the 
witness  telling  him  of  all  the  details  of  things  that  he  saw  there.  He 
answers  also  "Mr.  Burlew,"  another  Republican  lawyer  and  c<  un>el  fcr 
Mr.  McGinuis,  contestant.  That  gentleman  testifies  (Rec,  4r.8)  as  fol- 
lows: 

Answer.  Shortly  afterthe  election  in  Nov.,  W,  A.  Forsyth  told  me  thjit  he  bad  seen 
Montague,  one  of  the  cL'iks  employed  in  the  county  clerk's  office,  quite  late  in  the 
evening  after  dark  one  night  engaged  in  some  kind  of  work  ;  the  shutters  were  closed 


664  m'ginnis  vs.  alderson. 

and  the  light  was  dim  ;  therefore,  Forsyth  said  he  could  not  see  what  he  was  doi-ng. 
I  recollect  of  him  saying  that  Montague  wasn't  engaged  in  writing  at  a  table,  as  if 
doing  office  work,  but  seemed  to  be  moving  considerable;  I  know  that  Forsyth  said 
in  that  conversation  that  he  believed  that  Montague  was  the  man  that  interfered  with 
the  ballots  and  ])ackage8  filed  there  of  the  election  had  in  Nov.,  and  that-  he  did  it  that 
night.  He  seemed  to  be  quite  earnest  about  it  and  a  little  excited;  Forsythe  with 
other  Republicans  were  watching  the  county  clerk's  office. 

Neither  of  these  attorneys  corroborates  him,  but  rather  contradict. 
Neither  of  them  used  the  story  before  the  county  commissioners  to 
attack  the  recount      Why? 

Third.  Mr.  Goshorn  testifies  in  respect  to  Forsythe's  statement: 

It  is  a  lie  made  from  the  whole  cloth. 
Qiarrier  testifies : 

I  have  read  the  statement  made  by  said  Forsythe  and  know  that  the  same  is  an 
infamous  lie. 

Both  (  f  them  give  other  evidence  showing  that  Montague  was  not  in 
the  clerk's  office  at  the  time  at  which  Forsythe  professed  to  have  seen 
him  there.  The  witness'  manner  of  testifying  would  destroy  his  credi- 
bility with  most  honest,  impartial,  sensible  men.  Had  he  seen  Mon- 
tague tampering  with  those  ballots  the  town  would  have  known  it  before 
morning.  Yet  he  was  never  called  upon  to  testify  as  a  witness  during 
the  recount  when  contestant's  counsel  were  putting  before  the  commis- 
sioners all  the  testimony  possible  to  provide  an  excuse  for  them  to 
avoid  doing  what  the  facts  of  the  ballots  required — render  a  judgment 
which  would  leave  no  question  as  to  the  right  of  the  coutestee  to  his 
seat. 

Montague  was  never  in  charge  of  the  clerk's  office  so  as  to  have  tam- 
pered with  the  ballots.  Forsythe,  even,  does  not  testifj'  to  seeing  Mon- 
tague apparently  tampering  with  the  ballots.  The  ballots  were  never 
tampered  with.  The  recount  should  stand.  Contestee  was  thus  enti- 
tled to  the  certificate  by  a  plurality  of  2a  upon  the  jiroper  returns.  Vv''e 
shall  now  proceed  to  show  that  the  honest  plurality  of  contestee  should 
be  largely  increased  because  of  the  illegal  votes  cast  and  counted  for 
contestant.  The  latter  in  his  brief  says  "  this  case  will  show  about  as 
many  illegal  votes  cast  for  one  party  as  the  other." 

This  might  be  true  if  both  parties  had  been  equally  diligent  and  had 
taken  testimony  as  to  an  equal  number  of  suspected  illegal  votes.  But 
contestant,  as  he  says  on  page  2  of  same  brief,  "relying  upon  that  well- 
settled  principle  of  law  that  the  election  officers  to  whom  the  law  con- 
fides the  duty  of  determining  who  are  qualified  legal  voters  are 
presumed  to  have  done  their  duty,"  *  *  *  lias  taken  but  little 
testimony  and  has  sought  out  and  charged  as  illegal  voters  against 
himself  only  about  200  and  took  testimony  as  to  the  qualifications  of  not 
more  than  50  voters.  The  contestee  has  found  nearly  400  illegal  voters 
who  voted  for  contestant  and  has  taken  a  great  deal  of  testimony  to 
sustain  his  charges,  examining  one  or  more  witnesses  about  each  voter. 
The  number  of  illegal  votes  cast  for  one  party  will  not  be  shown  to  be 
as  many  as  those  cast  for  the  other  when  such  a  state  of  facts  exists. 
Some  of  the  witnesses  contestant  called  sustained  the  claims  of  con 
testee.  A  different  reason  from  that  given  b^'  contestant  clearly  ai> 
pears  for  taking  little  testimony  as  to  a  large  number  of  his  alleged 
illegal  voters. 

The  committee  have  adopted  a  queer  plan  to  dispose  of  the  testimony 
of  contestant  sustaining  the  charges  of  illegal  voting  made  by  him. 
For  example,  they  have  in  many  instances  made  statements  ol  votes 
assailed  by  a  particular  witness,  as  if  he  were  the  only  one  who  had 


m'ginnis  vs   alderson.  665 

testified  to  the  illegality  of  tiieir  votes,  when  in  fact  several  witnesses 
have  sworn  to  facts  tending  to  prove  that  the  voters  named  were  not 
entitled  to  vote.  Further  along  in  iheir  report  some  mention  may  be 
made  of  other  witnesses  whose  testimony  assailed  the  legality  of  these 
same  voters.  But  it  is  presented  in  such  a  way  as  to  hide  or  weaken 
the  force  of  their  evidence. 

If  the  purpose  of  the  committee  was  to  discourage  and  i)revent  mem- 
bers from  investigating  for  themselves,  it  certainly  has  been  success- 
fully effected.  Many  illegal  votes  for  contestant  are  refused  to  be  re- 
jected, because  the  witness  against  them  was  one  of  the  judges  of  elec- 
tion who  received  the  votes  cast  by  those  electors,  while  the  facts  to 
which  he  swears  are  nowhere  controverted,  but  are  corroborated  by 
other  witnesses.  More  than  once  the  proposition  is  advanced  that 
certain  testimony  does  not  overcome  the  presumption  arising  from  the 
reception  of  any  of  these  votes,  when  that  testimony  is  but  a  part  of 
a  chain  of  evidence  establishing  beyond  all  question  that  many  of  the 
voters  were  not  legal  voters  in  West  Virginia  at  the  time  of  that  elec- 
tion. The  committee  concedes  that  13  of  the  361  voters  directly  chal- 
lenged by  contestee  for  being  illegal  were  so  and  were  cast  for  con- 
testant. 

The  names  of  the  13  are  given,  and  the  pages  of  the  record  on  which 
the  testimony  concerning  said  voters  may  be  found. 

The  comixiittee  claim  that  16  of  50  voteis  investigated  by  the  con- 
testant were  illegal  and  cast  for  contestee,  and  therefore  should  be 
devlucted  from  his  total.  A  fair  comparison  of  the  testimony  upon 
which  the  13  are  conceded  or  the  16  claimed  with  the  evidence  against 
each  of  300  others  who  voted  for  contestant  will  show  that  every  one 
of  them  ought  to  be  rejected.  Take,  for  instance,  from  the  table  in  the 
report  of  "  Illegal  votes  tor  Alderson,"  No.  9,  William  J.  Wyatt  (Eec, 
97,  98).     This  is  the  testimony  of  John  Buckland: 

Queetiou  3.  Do  you  know  where  the  said  Wm.  J.  Wyatt  voted  on  the  6tli  day  of 
November,  1888? — Aus.  I  understand  he  voted  in  Talcott  district,  Summers  Co.,  W. 
Va. 

Ans.  to  Quest.  4.  He  lives  in  Greenbrier  district,  said  county  of  Summers,  and  has 
lived  there  all  his  life. 

Ans.  to  Q.  6.  He  belongs  to  the  Democratic  party. 

Ans.  to  X-Q.  1.  I  understand  he  voted  there  (at  Talcott),  but  don't  know  it  of  my 
own  knowledge. 

Re-ex.  Yes;  he  lives  in  Greenbrier,  in  about  30  yards  from  the  line. 

John  P.  Buckland  testifies  as  to  William  J.  Wyatt : 

I  don't  know  whether  he  voted  at  Talcott  or  not.  My  understanding  is  he  voted 
there.     He  always  made  a  habit  of  voting  there. 

The  committee  reject  this  voter  and  take  1  from  Alderson.  Is  any 
comment  necpssary? 

1.  M.  A.  Bell  (Rec,  37,  38)  on  that  list.  This  vote  is  assailed  by  one 
of  the  two  Republican  judges  who  permitted  him  to  vote.  The  question 
was  as  to  residence  and  a  county  line.  Why  did  the  committee  violate 
its  own  astute  ruling  as  to  the  evidence  of  Mr.  Solomon  and  other  Dem- 
ocratic judges? 

4.  Christopher  Burns  (Rec,  56, 57, 146).  A  question  of  the  county  lines 
arises. 

This  man's  voteis  taken  from  Mr.  Alderson's  majority  upon  the  testi- 
mony of  George  H.  Surber,  about  two  brothers^  James  Burns  and  Chris- 
topher Burns,  as  follows : 

They  voted  at  White  Sulphur  Springs  at  said  election. 


B66  m'ginnis  vs.  alderson. 

They  voted  tlieDemocratic  ticket.  The  two  Burnses  hved  in  Alleghany 
County,  Va.     He  is  contradicted  by  William  H.  Maun  (140) : 

I  have  known  Christopher  and  James  Burns  for  a  number  of  yt  ars.  I  was  at  their 
home  some  years  ago  ;  was  informed,  by  Mr.  Burns  yesterday  that  they  still  resided 
at  the  same  place  in  White  Sulphur  district,  Greenbrier  County,  W.  Va.  When  I 
was  at  the  Bums  house  I  was  shown  a  line  between  the  two  counties  (Greenbrier, 
W.  Va.,  and  Allephany,  Va.),  and  from  what  Mr.  Burns  showed  me,  be  lived  in  Green- 
brier Co.,  W^.  Va.  I  am  informed  that  the  sons  reside  in  the  old  home  house.  I  was 
informed  by  one  of  them  yesterday  that  he  did  not  vote. 

By  what  process  of  ratiocination  did  the  committee  evolve  that  it  was 
Christopher  not  James  who  should  be  taken  ?  Why  shonld  either  be 
selected  to  be  rejected  ? 

Mr.  Mann,  who  says  he  has  lived  in  that  precinct  all  his  life — forty- 
three  years — was  one  of  the  commissioners  of  election,  also  said  he  had 
seen  Mr.  James  Burns  frequently  at  that  precinct  on  election  days. 

10.  Hiley  Gilpin  (Rec,  97).  This  voter  is  deducted  by  the  committee 
from  contestee's  majority  upon  the  following  evidence  of  John  S.  Gilpin: 

Q.  Did  your  son  Riley  Gilpin  vote  at  Hinton,  Summers  County,  W.  Va.,  on  the  6th 
day  of  Nov.,  1888  ?-A.  I  think  he  did. 
Ans.  to  Q.  3.  He  was  20  years  old. 
Ans.  to  Q.  4.  He  was  a  Democrat. 

1 1 .  Elmore  Ross  (Rec,  99)  goes  off  the  poll  for  contestee  upon  the  story 
of  Mr.  W.  F.  Arter,  a  lumber  dealer,  who  resides  in  Cleveland,  Ohio,  as 
follows  : 

Q.  2.  Do  you  know  one  Elmer  Ross  ? — Ans.  I  do. 

Q.   'S.  Do  you  know  whether  he  voted  at  Talcott? — Ans.  I  am  informed  thathedid. 

Q.  4.  Was  he  entitled  to  vote?— Ans.  He  was  not. 

Ans.  to  Q.  5.  He  claimed  to  be  a  Democrat. 

Ques.  1st.  How  do  you  know  said  Ross  was  not  a  voter  in  the  county  of  Summers 
at  the  election  held  Not.  6th.  1888? — Ans.  He  came  from  Texas  about  theSOof  Nov., 
1887,  and  the  following  spring  and  summer  was  gathering  iruit  and  berries  and  hav- 
ing his  sister  to  can  them  to  take  back  to  Texas,  and  .said  he  had  no  right  to  vote, 
but  if  here  on  election  day  he  intended  to  vote. 

Do  you  know  that  said  Ross  did  vote  ? — Ans.  No  ;  I  was  not  at  the  election.  I  have 
been  told  so  and  seen  his  name  on  a  copy  of  the  poll-books. 

And  further  this  deponent  saith  not. 

W.  F.   Arter. 

15.  Kelly  Broyles  (Rec,  104),  in  the  same  list,  did  not  vote  at  all.  Ac- 
cording to  his  own  story  perhaps  he  should  be  counted  for  McGjnuis. 
The  committee  say  Jacob  Judy's  vote  should  be  counted  for  McGinuis. 
As  there  is  a  question  of  a  line  between  i)recinct8  it  may  be  it  should. 
He  says  "  they  would  not  let  him  vote  at  Livesay's  Mills  i)recinct  because 
he  lived  in  Falling  Springs  district."  He  did  not  try  the  latter.  "  He 
did  not  know  the  correct  location  of  the  line  between  the  two  districts." 
The  committee  have  compared  his  treatment  with  that  of  the  Quicks. 
He,  in  his  evidence,  says  he  lived  in  Falling  Springs.  W.  IN.  Neal  (53) 
one  of  their  witnesses  and  the  Republican  judge  at  thatpiecinct,  says : 

Judy  resides  farther  over  in  the  district  (Falling  Springs)  than  the  Quicks. 

According  to  Judy's  own  testimony  he  was  not  entitled  to  vote  at  the 
precinct  he  went  to  November  6,  1888. 

Rhodes  D.  Trent  (Rec,  89)  says  he  went  to  the  polls  "  about  half  after 
4  o'clock,  or  it  may  have  been  a  little  later." 

I  did  not  vote;  I  went  up  into  the  yard  where  the  election  was  held  ;  I  can't  say 
that  I  ofiered  to  vote  for  this  reason,  I  met  Joe  Peck  and  John  Vance  in  the  yard 
and  they  told  me  that  I  was  too  late,  as  the  polls  were  clo.sed.  I  am  a  Republican 
and  would  have  voted  for  McGinuis. 

He  <lon't  say  the  polls  were  closed.  He  was  too  lazy  to  go  see  for 
himself.     Why  should  he  be  counted  for  any  one  ? 


m'ginnis  vs.  alderson.  667 

Before  considering  the  individual  cases  of  the  large  number  of  illegal 
votes  cast  and  counted  for  contestant,  a  careful  survey  of  the  situation 
of  that  part  of  the  district  in  which  the  wholesale  frauds  were  perpe- 
trated and  the  circumstances  under  which  they  were  committed  is  ad- 
visable. 

A  large  number  of  witnesses  have  testified  in  this  case  in  such  man- 
ner as  to  make  their  evidence  apply  generally  to  the  persons  who 
voted  illegally,  as  charged,  at  the  precincts  of  Mill  Creek  and  Simmons 
Creek,  in  Eock  district,  and  at  Cross  Roads  precinct,  Beaver  Pond 
district,  in  Mercer  County,  and  at  Mayberry  and  Peerey  Bottoms  pre- 
cincts, in  Elkhorn  district,  in  McDowell  County,  both  as  to  their  right 
to  vote  and  the  person  for  whom  they  voted.  It  appears  that  the 
county  of  Mercer,  and  especially  that  part  of  it  which  constitutes  the 
mining  district,  lies  immediately  upon  the  borders  of  the  State.  Mc- 
Dowell County  is  also  a  border  county. 

The  Norfolk  and  Western  Railroad  is  the  only  thoroughfare  leading 
into  this  section  of  the  country.  These  counties  lie  in  the  extreme 
southern  part  of  the  State  and  many  miles  distant  from  any  West  Vir- 
ginia railroad  proper.  The  only  connection  possible  to  be  made,  by  way 
of  the  Norfolk  and  Western  Railroad,  lead'ug  from  this  locality,  with 
any  other  railroad  is  to  pass  through  the  southwestern  i)ortiou  of  the 
State  of  Virginia.  The  i)roof  shows  that  it  is  but  a  mile  and  a  half 
from  Mill  Creek  voting  precinct,  3  miles  from  Simmons  Creek  voting 
precinct,  and  not  to  exceed  7  miles  from  the  most  remote  of  the  Mc- 
Dowell i^recincts  by  the  route  of  said  railroad  to  the  Virginia  line. 
The  town  of  Pocahontas,  which  has  a  mining  population  of  not  less 
than  5,000,  two-thirds  of  whom  are  negroes,  is  situated  just  across 
the  Virginia  line  and  but  2  miles  from  Mill  Creek  voting  precinct.  A 
like  proportion  of  the  i)ersons  who  are  employed  to  labor  in  and  about 
the  mines  in  Mercer  and  McDowell  Counties  were  negroes  at  the  time  of 
said  election.  These  negroes,  so  employed,  were  extremely  migratory 
and,  in  the  language  of  L'iauy  of  the  witnesses,  "  coming  and  going  all  the 
time."  None  of  them  hMl  acquired,  either  in  Mercer  or  McDowell 
County,  residences  or  homes  of  their  own,  or  lived  ni  any  other  than 
the  tenement  houses  of  their  employers.  These  facts  are  clearly  and 
conclusively  demonstrated  by  the  copies  of  the  i)ay-rolls,  running  over 
a  period  O'  twelve  months  next  preceding  said  election,  of  all  the  col- 
liery companies  in  both  said  counties,  and  printed  in  the  record  of  this 
case. 

The  first  of  the  collieries  in  Mercer  County  started  upon  development 
after  1883.  They  were  the  plants  of  John  Cooper  &  Co.  at  Mill  Creek, 
Freeman  &  Jones,  afterwards  the  Caswell  Creek  Coal  and  Coke 
Company,  and  William  Booth  &  Co.,  afterwards  the  Booth-Bowen 
Coal  and  Coke  Company.  The  other  mines  in  Mercer  County  were  de- 
veloped at  a  later  date.  The  branch  of  the  Norfolk  and  Western  road, 
extending  from  Mill  Creek  into  McDowell  County,  was  not  completed 
until  August,  1888,  and  none  of  the  collieries  in  that  county  began 
operations  until  that  time,  and  but  three  of  them  during  that  year. 
There  were  no  negroes  in  Rock  district,  Mercer  County,  or  in  Elkton 
distt  let,  McDowell  County,  prior  to  these  mining  developments. 

It  also  appears  from  the  evidence  that  these  various  colliery  companies 
build  tenement  houses  upon  their  properties  to  be  occupied  exclusively 
by  their  own  employes;  and,  that  whenever  a  person  was  engaged  by 
them  in  any  of  the  departments  of  their  busine&s,  he  contributed  to  the 
rent-roll  of  such  company  by  occupying  one  of  its  tenements.  Said 
companies  kept  pay-rolls  upon  which  were  entered  the  names  of  all  per- 


fiG8  m'ginnis  vs.  alderson. 

sons  iimployed  by  tlicin  aucl  whic])  fcljowcd  tbc  days  or  luouibs  they 
were  engaged  at  work  lor  them.  It  is  also  shown  by  the  evidence  that 
there  were  no  negroes  Jiving  within  either  of  the  said  voting  preciu(;ls 
in  Mercer  or  McDowell  Counties  at  the  time  of  said  election  who  were 
not  then  employed  by  some  one  of  said  collier}^  companies.  It  appears 
from  an  inspection  of  said  pay-rolls  that  every  negro  who  voted  at  any 
precinct  in  either  of  said  counties,  whose  vote  is  challenged  by  cou- 
testee  and  concerning  whose  right  to  vote  specific  evidence  was  taken, 
was  employed  by  some  one  of  said  collieries  for  some  time  during  the 
year  preceding  the  election,  but  none  of  them,  with  but  thiee exceptions, 
were  employed  in  all  the  cCUeries  taken  together  for  the  whole  of  the 
twelve  months. 

All  of  these  negroes  who  are  charged  to  have  voted  illegally  at  one 
or  the  other  of  these  precincts  came  direct  from  the  State  of  Virginia 
or  the  State  of  North  Carolina  when  they  entered  the  service  of  those 
coal  companies.  Therefore,  if  it  be  true,  as  the  evidence  discloses, 
thatall  the  male  negroes  who  were  in  llockdistrict  of  Mercer  County  and 
Elkhorn  district  of  McDowell  County  at  the  time  of  said  election  were  in 
the  employ  of  said  colliery  companies  and  had  been  so  employed  dur- 
ing their  stay  there,  and  it  does  not  appear  from  all  of  said  pay  rolls 
taken  together  that  they  had  been  employed  for  the  period  of  the  twelve 
months  next  preceding  said  election,  it  follows,  necessarily,  that  they 
had  not  been  in  the  State  of  West  Virginia  during  all  of  that  time 
and  had  not,  therefore,  acquired  under  the  laws  of  said  State  the  right 
to  vote  at  said  election. 

This  argument  applies  with  equal  force  to  the  persons  hereinafter 
referred  to  in  connection  with  McDowell  County,  charged  by  contestee 
to  have  voted  illegally  at  one  or  the  other  of  said  precincts  in  McDowell 
County,  and  who  had  not  been  employed  by  either  or  all  of  said  com- 
panies for  sixty  days  next  preceding  said  election. 

It  also  appears  from  the  evidence  that  all  of  the  seven  collieiy  com- 
panies in  McDowell  County  were  owned  and  re-operated  by  incorporated 
comi)anies ;  and,  as  we  have  heretofore  stated,  the  law  of  West  Vir- 
ginia, in  defining  the  right  of  franchise  in  said  State,  provides : 

*  *  *  Nor  shall  any  person  in  the  employ  of  any  incorporated  company,  or  of 
this  State,  bo  fleemed  a  resident  of  any  county,  or  of  any  district  therein,  by  reason 
of  being  employed  in  said  county  or  district. 

It  is  shown  by  Samuel  Beckett  that  he  was  at  Simmons  Creek  pre- 
cinct during  all  the  day  of  said  election;  that  he  saw  Eepublican 
tickets  there  on  that  day  and  being  distributed  among  the  negroes  by 
Republican  leaders  and  workers,  among  whom  were  Mr.  John  D. 
Hewett,  a  member  of  the  State  central  committee  and  of  the  Congres- 
sional and  county  executive  committees  of  the  Republican  party,  sui)er- 
intendentaud  part  owner  of  one  of  the  collieries.,  and  Mr.  J.  B.  Kremer, 
bookkeeper  for  another  colliery  and  a  Republican  campaign  orator. 
Mr.  Hewett  admits  himself  in  his  testimony  that  all  the  negroes  in 
Rock  District  were  Republicans ;  that  he  knew  of  but  one  Democrat 
ainong  them,  to  wit,  Pleas.  Robinson,  and  states  that  150  negroes,  all 
Republicans,  went  in  a  body  with  a  brass  band  at  their  head  to  within 
100  yards  of  the  polls  at  Simmons  Creek  precinct,  there  broke  ranks, 
and  voted.     (See  p.  454.) 

In  this  connection  it  may  not  be  nn proper  to  remark  that  it  appears 
from  the  testimony  that  the  owners  of  the  collieries,  in  the  vicinity  of 
all  these  precincts,  and  the  persons  who  controlled  the  laborers,  with 
power  to  employ  or  discharge  them,  were,  almost  without  exception. 
Republicans,  promiueut  and  active  workers  for  their  party;  that  they 


m'ginnis  vs.  alderson.  669 

employed  in  tlieir  miues  iiegro  labor  almost  exclusively,  in  opposition 
to  the  aeneral  rule  in  respect  to  employment  of  mine  labor  (for  party 
purposes  no  doubt);  that  we  find  the  gentlemen  before  named  and  other 
operators  at  the  polls  on  election  day  distributing  tickets  among  their 
employ6s  and  influencing  them,  challenging  white  voters,  but  never  once 
questioning  the  right  of  any  negro  to  vote,  and  where  a  negro's  vote 
was  questioned  advocating  his  right  to  vote.    These  facts  are  significant. 

The  West  Virginia  law  requires  the  assessors  of  the  various  counties 
to  list  for  taxation  as  of  April  1  of  each  year  "every  male  inhabitant 
who  has  attained  the  age  of  twenty-one  years  " 

James  B.  Cyphers,  deputy  assessor  of  McDowell  County,  testifies 
that  he  was  very  active,  careful,  and  diligent  about  the  listing  of  per- 
sons above  twenty-one  years  of  age  in  the  mining  section  in  1888; 
"that  we  went  to  the  collieries  and  where  the  hands  were  at  work;  and 
listed  all  persons  that  he  could  find  liable  to  such  taxation,  swore  the 
negroes,  and  used  every  possible  effort,  and  yet  it  appears  from  his  tes- 
timony that  one  hundred  and  thirty-four  persons  (and  the  evidence  shows 
that  they  were  negroes  almost  without  exception)  voted  at  Peery  Bot- 
toms and  May  berry  precincts,  in  Elkhorn  district,  in  McDowell  County, 
not  listed  by  him  for  taxation  in  said  county  (pp.  252-254). 

Only  eighteen  of  the  persons  voting  at  said  precincts,  whose  votes  are 
questioned  by  coutestee,  were  assessed  for  taxation  in  1888  in  said 
county,  and  their  names  are  stated  by  said  witness. 

Votea. 
lu  18S8  (November  6)  Eopublicau  uominee  for  Representative  iii  Congress    re- 
ceived, in  Rock  district,  Mercer  County 737 

In  lb86  the  Republican  nominee  received  in  same  district 121 

Increase  of  Republican  vote  in  Rock  district  in  two  years 616 

Or  above  600  per  cent.     (See  deposition  of  H.  B.  Barber,  px).,  344,345.) 

These  men  were  not  assessed,  either,  because  they  were  not  there  or 
claimed  non-residence  if  there. 

The  assessor  of  Mercer  County  listed  of  such  persons  in  Eock  dis- 
trict, in  1888,  61  blacks  and  564  whites ;  total  625.  (See  testimony  of 
W.  H.  H.  Witten,  assessor,  p.  245.) 

Vote  cast  in  Eock  district,  November  6,  1888,  1,145;  number  of  per- 
sons voting,  not  listed  for  taxation,  520.  But  61  negroes,  bear  in  mind, 
were  listed  for  taxation  in  1888,  and  the  testimony  shows  that  more 
than  600  voted  at  said  election  in  said  district.  W.  H.  H.  Witten,  as- 
sessor, testifies  that  he  was  very  careful  and  diligent  about  the  dis- 
charge of  his  duty,  and  listed,  for  such  taxation,  all  persons  he  could 
find  m  Eock  district,  where  the  miues  were  located  and  negroes  were; 
that  many  of  them  claimed  not  to  live  in  West  Virginia.  Negroes  said, 
'' We  do  not  live  here.  We  do  not  claim  this  as  our  home  and  we  do 
not  pay  taxes  here,"  and  that  they  lived  in  Virginia  and  paid  taxes 
and  voted  there.     (See  p.  246.) 

In  1886  total  vote  cast  in  Mercer  County  was 1, 564 

In  1888  total  vote  cast  in  Mercer  County  was 2,777 

Increase  in  two  years  (nearly  80  per  cent.) 1,213 

In  May,  1889,  total  vote  cast _ 1,608 

Decrease  in  vote  frojn  November,  1888,  until  May,  1889  (nearly  80  per  cent.) ..     1, 109 

From  these  facts  and  from  the  testimony  showing  that  not  more  than 
one  in  twenty  of  the  male  negroes  employed  in  the  mines  of  Eock  dis- 
trict was  married,  with  a  family  residing  in  said  State  (see  p.  30») ;  that 
there  were  no  negroes  in  said  section  when  the  mines  were  developed  ; 


670  m'ginnis  vs.  aldekson. 

that  sai(>  district  borders  on  Virginia ;  that  there  was  railroad  communi- 
cation between  said  district  and  Virginia  ;  that  such  negro  employes 
were  migratory  in  their  habits,  and  invariably  claimed  Virginia  as  their 
homes,  and  were  sending  money  continually  and  going  to  Virginia 
themselves,  many  of  them  back  and  forth ;  that  they  were  working  some- 
times at  one  colliery,  and  then  at  another;  sometimes  in  Mercer  County; 
sometimes  in  McDo^^ell  County,  W.Va.;  sometimes  at  Pocahontas,  Va.; 
it  must  be  accepted  as  true  that  not  only  a  most  inviting  opportunity 
existed  for  fraud,  and  that  grossest  frauds  were  committed  in  the  cast- 
ing of  illegal  negro  votes  in  u'ock  district,  Mercer  County ;  at  Simmons 
Creek,  Mill  Creek,  and  Honaker's  Mills  precincts;  at  Cross  lioads, 
Beaver  Pond  district,  Mercer  County,  and  at  May  berry  and  Peery  Bot- 
toms precincts,  in  Elkhom  district  of  McDowell  County,  at  or  contigu- 
ous to  which  precincts  the  mines  of  Mercer  and  McDowell  Counties  are 
situated  and  around,  and  at  which  the  negro  population  was  on  Novem- 
ber C,  1888 ;  but  also  that  a  vast  number  of  negroes  voted  illegally  at  said 
precincts.  In  this  connection  it  should  also  be  remembered  that  the 
owners  and  persons  controlling  these  mines  and  employes  were  almost, 
without  exception,  Eepublicans  (one  of  them,  John  Cooper,  was  chair- 
man of  theKepublican  county  executive  committee,  and  another,  John 
D.  Hewett,  memberof  the  Republican  State  executive  co»iniittee),  and 
took  active  parts  on  the  day  of  and  before  the  eiectiou  in  behalf  of  the 
Eepublican  ticket ;  and  that  there  is  no  registration  of  voters  in  West 
Virginia. 

The  mine-owners,  who  were  Eepublicans  and  employed  the  negro 
miners,  were  in  a  pOvsition  to  know  all  about  the  residence  of  their  em- 
ployes. The  contestee  offered  evidence  to  prove  that  a  large  number 
of  such  employes  were  not  residents  of  West  Virginia  at  the  time  of 
said  election.  If  contestee's  position  and  evidence  was  not  true,  then 
it  would  have  been  easy  for  contestant  to  show  its  falsity  by  pr.  ducing 
the  voters  challenged  or  some  one  who  knew  of  their  residence  in  the 
Stateof  West  Virginia  aswitnessesto  testify.  Itis  asigniflcant  factthat 
no  such  witness  was  produced,  except  J.  M.Douglas.  Mr.  Hewett  himself, 
a  superintendent  of  amine  and  prominent  in  the  councils  of  his  party 
and  an  active  worker  for  its  success,  was  a  witness,  but  failed  to  say  a 
word  to  contradict  the  testimony  of  contestee.  If  the  negroes  whose 
votes  were  attacked  by  contestee  had  been  residents  of  West  Virginia 
for  one  year  before  November  6,  1888,  it  is  probable  that  they  would 
have  been  such  residents  when  contestant  took  his  testimony  in  rebut- 
tal. It  is  also  significant  that  no  one  of  these  negroes  was  examined  as 
a  witness  by  contestant.  Contestee  could  not  be  expected,  even  if  any 
of  said  negroes  could  have  been  found  by  him,  to  have  co?nraitted  him- 
self to  the  evidence  of  i)ersons  who  had  systematically,  willfullyj  and 
palpably  broken  the  laws  of  the  State. 

J.  M,  Douglas,  a  negro  minister,  could  not  tell  when  a  single  one  of 
those  to  whom  his  attention  was  called  first  came  to  the  State,  and 
he  did  not  show  that  a  single  one  was  a  bona  fide  resident  of  the  State 
on  November  6,  1888.  The  fact  that  he  had  seen  them  around  there 
does  not  establish  that  they  were  residents;  and  five  of  the  ])ersons 
whom  he  states  to  have  lived  in  Mercer  County  at  the  time  of  the  elec- 
tion are  proven  to  have  voted  in  McDowell. 

It  is  not  important  to  the  contention  made  by  contestee  concerning 
the  negroes  who  voted  in  these  counties  whether  or  not  the  Ee])ublican 
mine-owners  were  privy  to  the  casting  of  illegal  votes  by  negroes.  Mr. 
Hewitt  shows  that  there  were  a  large  number  of  negroes  who  were  not 
legal  voters  in  said  counties  at  the  time  of  the  election;  and  the  i)roof 


ALDERSON.  671 

discloses  that  the  negroes  were  determined  to  vote,  whether  entitled  to 
do  so  or  not,  as  was  naturally  the  case;  and  illegal  votes  would  have 
been  cast  by  negroes  in  these  counties  even  if  the  persons  on  hoth 
sides  having  in  charge  the  campaign  had  united  in  a  common  effort  to 
preserve  the  purity  of  the  ballot. 

For  the  purpose  of  abridging  the  abstract  of  this  testimony  in  regard 
to  each  case,  let  us  say: 

First.  That  each  witness  testifying  in  regard  to  any  of  the  alleged 
illegal  voters  of  these  two  counties  testifies  that  he  is  a  negro,  and  a 
miner  or  laborer  by  occupation,  unless  otherwise  expressly  stated. 

Second.  That  all  of  the  alleged  illegal  voters  are  shown  to  have  voted 
at  the  respective  precincts  at  which  they  are  charged  to  have  voted  by 
the  poll-lists  (pp.  2.52,  254,  338,  et  seq.,  350.) 

Third.  That  the  charge  in  regard  to  each  is  that  he  was  not  a  resident 
of  the  State  of  West  Virginia  for  one  year  preceding  said  election,  or 
of  the  county  in  which  he  voted  sixty  days  prior  thereto,  and  was  not  a 
resident  of  State,  county,  or  district  in  which  he  voted,  unless  otherwise 
expressly  stated. 

Fourth.  That  the  names  of  none  of  these  persons  hereafter  named  as 
having  voted  illegally  in  McDowell  County  were  upon  the  assessor's 
books  of  said  county  (see  testimony  of  J.  B.  Cyphers,  p.  253  et  seq.) 
except  James  Hackey,  and  his  name  does  not  appear  on  the  assessor's 
books  of  Elkhorn  district.  (J.  D.  Christian,  p.  360).  And  that  said 
Cy]>hers  took  the  precaution  and  care  to  list  all  male  residents  over 
twenty-one  years  of  age,  as  above  stated. 

Fifth.  That  the  contestant  was  the  candidate  of  the  Eepublican  party, 
and  his  name  was  on  the  liepublicau  tickets  voted. 

Sixth.  That  the  time  about  which  witnesses  testify  refers  to  time  of 
election  (November  6, 1888). 

Seventh.  That  in  connection  with  the  statement  made  of  the  testi- 
mony of  S.  M.  Williamson  in  regard  to  each  alleged  illegal  voter,  con- 
cerning whom  he  testifies,  in  these  two  counties,  the  following  facts  are 
to  be  applied  to  each  case  without  further  statement  thereof,  viz : 

He  was  book-keeper  and  paymaster  for  Henry  Fairfax,  who  was  en- 
gaged in  grading  a  railroad  from  Mill  Creek,  in  Mercer  County,  to  Elk- 
horn,  and  in  the  building  on  the  line  of  railroad  the  flattop  tunnel,  from 
8th  of  March,  1887,  to  August,  1888;  and  also  was  grading  at  the  town 
of  Bluefield,  in  Mercer  County,  from  January,  1888,  to  April,  1888,  for 
said  railroad;  that  the  labor  employed  was  nine-tenths  negroes;  that 
they  were  engaged  in  Virginia,  where  they  lived,  by  the  foremen,  in 
different  countiesj  their  transportation  was  paid  for  them  to  place  of 
working,  and  that  thej'^  claimed  Virginia  as  their  home  and  came  for  the 
purpose  ot  working  on  the  road ;  entry  of  the  date  of  their  employment 
was  made  upon  the  books  kept  by  the  witness,  which  show  the  date  of 
their  arrival  and  the  length  of  time  they  worked.  The  voters  he  testifies 
in  relation  to  were  brought  to  West  Virginia  under  the  circumstances 
above  stated,  and  each  was  brought  inside  year  of  election. 

We  have  not  cited  the  witnesses  nor  quoted  the  testimony  to  estab- 
lish the  foregoing  general  propositions  in  every  instance.  These  prop- 
ositions are  not  controverted,  and  could  not  be  with  the  overwhelm- 
ing proof  there  is  in  the  record  to  sustain  them.  The  committee  have 
seen  proper  to  ignore  them,  possibly  so  as  not  to  call  attention  to  the 
strength  of  the  coutestee's  case  with  respect  to  the  multitude  of  illegal 
votes  cast  for  contestant  with  a  brass  band  accompaniment.  The  con- 
testee  proves  that  345  illegal  votes  were  cast  for  contestee.  We  select 
a  large  number  of  these  which  will  bear  the  comparison  we  have  before 


672  m'ginnis  vs.  alderson. 

asserted.    In  addition  to  the  witness  cited  in  each  individual  case^  all 
the  surroundings  of  the  voter,  which  we  have  fully  set  forth,  must  be 
borne  in  mind. 
Monroe  Womach  (voter) : 

Witaess,  Solomon  (R.,  235),  foreman  Powhafctan.  Coal  aud  Coke  Co.  Womach 
claimed  his  home  ia  Pittsylvania  County,  Va.;  came  here  from  Pittsylvania  County, 
Va.,  latter  part  of  November  or  December,  1887;  married  man;  family  live  there; 
never  been  here ;  vronld  send  money  to  them  ;  voted  the  Republican  ticket  at  election. 
Witness,  Williamson  (R.,  291),  book-keeper  and  paymaster  Elkhorn  extension.  Wom- 
ach came  from  Virginia  in  May,  1888,  and  commenced  work  for  us  on  Elkhorn  exten- 
sion ;  name  on  the  poll-books. 

Sam  Akees: 

J.  H.  Clare's  testimony  (p.  250)  shows  he  was  a  young  man  aud  his  home  was  in 
Virginia.  M.  C.  Franklin  (p.  3:i4-5)  shows  he  came  from  his  home  in  Franklin 
County,  Virginia,  to  McDowell  County,  and  commenced  to  work  for  the  Houston 
Coal  and  Coke  Company  April  23, 1888. 

Joseph  Ballard: 

First  came  to  W.  Va.  from  North  Carolina  in  March,  1888,  and  stayed  two  days  and 
returned  to  North  Carolina,  came  back  again  in  April,  1888  (L.  D.  Solomon,  p.  234). 
He  worked  for  Houston  Coal  and  Coke  Co.  (Franklin's  testimony  p.  334-5.)  He 
voted  the  Republican  ticket  (jjp.  350,  235).  Returned  to  N.  Car.  after  election;  not 
been  back  since. 

M.  C.  BOTKIN,  white : 

It  is  shown  by  L.  D.  Solomon  (p.  235)  that  he  is  a  white  man  ;  lived  with  his  family 
in  Pocahontas,  Virginia,  until  January  or  February,  1888.  By  J.  H.  Clare  (p.  250) 
that  he  had  lived  with  his  family  in  Pocahontas  nntil  nine  months  before  election ; 
that  he  was  a  Republican  and  voted  that  ticket. 

Andrew  Bolin: 

It  is  shown  by  L.  D.  Solomon  (p.  254-5)  that  he  came,  in  December,  1887,  from 
Cripple  Creek,  Virginia,  at  which  place  he  claimed  his  home.  He  voted  the  Repub- 
lican ticket  (p.  235). 

Bowles  Darby: 

L.  D.  Solomon  testifies  that  voter  lived  in  Campbell  County,  Virginia;  first  came 
to  West  Virginia  in  August,  1888,  and  worked  at  different  places  until  October  2, 
1888,  when  he  returned  home  to  Virginia;  came  again  to  Elkhorn,  October  27th, 
1888;  that  he  voted  the  Republican  ticket  (p.  234-5).  See  also  J.  H.  Clare's  testi- 
mony (p.  250),  name  on  poll- lists  (p.  350)  is  misprinted,  "  Bolen  Darly." 

John  Kirby: 

Solomon  testifies  that  he  is  married;  his  family  lived  in  Virginia,  where  he  had 
property,  until  shortly  before  election  ;  he  voted  Republican  ticket  (p.  234-5).  Com- 
menced work  for  Crozier  Coal  &  Coke  Co.  January  31,  1888  (p.  363).  He  told  J.  H. 
Clare  he  had  voted  the  Republican  ticket;  that  his  home  was  in  Virgirua.     (p.  250.) 

Wm.  LeE: 

L.  D.  Solomon  testifies  that  voter  was  never  in  the  State  of  West  Virginia  until 
summer  of  1888,  when  ho  came  from  Virginia,  where  he  claimed  his  home.  He 
voted  the  Republican  ticket  (pp.  234-5).  J.  H.  Claie's  testimony  as  to  voting  to 
same  eflecfc,  and  voter's  home  was  in  Virginia,     (p.  250.) 

Williamson  shows  that  he  was  brought  from  his  home  in  Virginia,  in  March,  1888, 
and  worked  for  Mr.  Fairfax  at  Bluefield,  Mercer  Co.;  was  one  of  those  who  were  em- 
ployed in  Virginia  and  brought  out  to  work  on  railroad  (p.  2'Jl). 

Wm.  Mays  : 

L.  D.  Solomon  testified  that  voter  voted  the  Republican  ticket.  Came  to  West  Vir- 
ginia first  in  October,  1888,  from  Virginia,  and  claimed  that  his  home  and  residence 
wds  there  (p.  234). 

John  Jackson  : 

L.  D.  Solomon  testifies  that  voter  was  a  married  man  and  lived  with  his  family  in 
Pocahontas,  Virginia,  until  about  January,  1888,  when  he  moved  to  Elkhorn.  He 
voted  the  Republican  ticket  (p.  234) ;  J.  H.  Clare  testifies  that  voter's  hon^e  waa  in 
Virginia,  &c.  (p.  250). 


m'ginnis  vs.  alderson.  673 

Spencer  Witchek: 

Williamson  (p.  291)  came  from  Virginia  December,  1887.  The  evidence  of  Mr. 
Solomon  (p.  2S4),  Clare  (p.  250),  are  the  same  as  in  regard  to  Wm.  Mays,  above  ;  in 
addition  he  was  married  and  lived  with  his  family  in  Virginia.  Solomon  is  corrob- 
orated by  Eugene  Robertson  (p.  358).     He  never  moved  his  family  into  West  Virginia. 

John  Lockett  : 

The  evidence  of  Solomon  as  to  this  voter  is  the  same  as  to  Wm.  Mays  (above).  Id 
addition,  he  was  married  and  lived  with  his  family  in  Virginia  (p.  234).  Solomon 
is  corroborated  by  Eugene  Robertson  (p.  358). 

Fey  Wade: 

Mr,  Clare's  testimony  (p.  250)  is  the  same  as  in  regard  to  Robert  Jones.  In  ad- 
dition thereto,  M.  C.  Franklin  (p.  334-5)  testifies  that  said  Wade  was  a  negro,  and 
came  from  Franklin  County,  Virginia,  in  October,  1888,  and  entered  the  employ- 
ment of  the  Houston  Coal  and  Coke  Company.  lu  the  printed  record  a  typograph- 
ical error  occurs  in  saying  "  West  Virginia''  instead  of  "Virginia,"  there  being  no 
Franklin  County,  West  Virginia. 

Ed.  Waller: 

In  regard  to  him  Mr.  Solomon  testifies  substantially  the  same  as  in  regard  to  Wil- 
iam  Mays  (p.  234).  J.  J.  Davidson  shows  that  Waller  was  employed  by  the  Turkey 
Gap  C.  &  C.  Co. ;  had  a  family  in  Virginia,  and  referred  to  Virginia  as  his  home  at 
the  time  ofthe  election  (p.  324).     Brought  his  wife  to  West  Virginia  in  Nov.,  1888. 

Beverly  Saunders: 

It  is  shown  by  Mr.  Solomon's  testimony  (p.  234)  that  he  came  from  his  home  in 
Virginia  and  commenced  work  for  the  Turkey  Gap  C.  &  C.  Co.  September  5,  1888. 

Monroe  Kent: 

J.  H.  Clare  shows  that  voter  claimed  Virginia  as  his  home,  and  is  a  Republican 
(p.  250).  It  is  shown  by  Mr.  Solomon  that  be  came  from  Pittsylvania  County,  Va., 
the  latter  part  of  November  or  December,  1887,  and  that  he  voted  and  was  a  Repub- 
lican (p.  234). 

Pleasant  Lee: 

It  is  shown  by  Mr.  Solomon  that  Lee  came  from  Virginia  the  latter  part  of  Novem- 
ber or  December,  1887  ;  claimed  that  as  his  home.  He  commenced  work  for  the  Tur- 
key Gap  Coal  and  Coke  Co.  Sep.  10th,  1888  (p.  324).  J.  H.  Clare  testifies  to  the  same 
facts  in  regard  to  him  as  in  regard  to  John  Kirby  (p.  250). 

William  Nowlin: 

L.  D.  Solomon  testifies  that  voter  came  from  Virginia  and  claimed  that  his  home ; 
worked  a  great  deal  in  Pocahontas,  Virginia  (p.  235).  Mr.  Clare  testifies  in  regard 
to  him  the  same  as  in  regard  to  John  Kirby  (p.  250).  W.  R.  Jacobs  shows  that  he 
worked  at  Pocahontas,  Virginia,  from  February,  1888,  to  June,  following  (p.  367). 
Mr.  Jacobs  being  clerk  of  the  Southwestern  Virginia  Improvement  Company,  doing 
business  and  located  at  Pocahontas,  Virginia. 

J.  Jenkins: 

It  is  shown  by  S.  M.  Williamson's  testimony  that  he  came  from  his  home  lu  Vir- 
ginia, to  work  at  Bluefield,  Mercer  County,  November  25,  1887,  and  was  imported  to 
work  on  railroad  grading  (p.  290-91). 

Ed.  Johnson: 

The  same  facts  are  shown  by  same  witness  as  in  regard  to  the  last  voter  (p.  290-91). 

Robert  Lemon: 

Mr.  Williamson  shows  (p.  290-1)  that  he  was  brought  from  his  home  in  Virginia 
in  1887  to  work  on  the  railroad  ;  that  he  went  home — claiming  Virginia  his  home — 
and  again  came  back  to  work  in  May,  1888.  Thomas  Falconbridge's  testimony  shows 
that  he  was  a  Republican,  and  voted  at  the  precinct;  claimed  Virginia  as  his  home  ; 
frequently  went  home,  and  was  gone  two  or  three  months  (p.  312).  Falconbridge 
was  section  foreman,  Norf.  &  West. ;  had  been  foreman,  Shamokin  Coal  &  C  oke  Co. 

Dan.  Dickinson: 

Mr.  Williamson  shows  that  voter  was  brought  from  his  home  in  Virginia  to  work 
on  the  railroad,  and  first  came  to  West  Virginia  ip  August,  1888,  working  at  Blue- 
fieM,  Mercer  County  (p.  290-91), 

H.  Mis.  137 43 


674  m'ginnis  vs.  alderson. 

W.  T.  Smith: 

J.  H.  Clare  shows  that  Smith  voted  ;  claimed  Virginia  his  home  (p.  250) ;  Mr,  Wil- 
liauisou  testities  that  he  was  brou<rht  from  his  home  in  Virginia  to  work  on  railroad 
in  March,  IHe'S  (p.  290-91);  M.  C.  Franklin  shows  that  Smith  is  married,  had  a  family 
living  in  Virginia  at  the  time  of  the  election ;  that  he  is  a  Repnblican,  and  coni- 
meuced  work  for  the  Houston  Coal  and  Coke  Company  in  April,  188S  (p.  234-5).  T. 
Falconbridge  (p.  213)  corroborates  above.  Smith  admitted  voting  illegally.  Ean 
away  for  fear  of  getting  into  trouble.    Not  seen  there  since. 

0.  S.  Callaway  : 

It  is  shown  by  Mr.  Williamson  that  voter  first  came  from  his  home  in  Virginia  to 
work  on  railroad  in  August,  1688,  and  claimed  Virginia  as  his  home  (p.  290-91). 

Dick  Wade  : 

Is  shown  by  Mr.  Williamson  to  have  been  bronght  from  Virginia,  his  home,  to  work 
at  Bluefield,  Mercer  County,  in  February,  1888  (p.  290-91). 

H.  0.  Patterson: 

Is  shown  by  Dr.  Jeter  to  be  non-resident,  and  to  have  voted  the  Repnblican  ticket. 
He  came  to  Elkhorn  in  January,  1^88 — his  family  lived  in  Botetonrt  County,  Virginia. 
The  dr'ctor  knew  his  lamily  in  Virginia  (p.  294).  This  is  confirmed  by  Franklin's 
testimony  (p.  334-5). 

James  Hackley: 

By  Mr.  Franklin  it  is  shown  that  he  came  from  his  home  in  Botetourt  County,  Vir- 
ginia, in  April,  188"^,  and  commenced  work  for  the  Houston  Coal  and  Coke  Company, 
and  was  a  Republican  (p.  334-5).  Mr.  Franklin  was  book-keeper  in  above  company, 
and  a  Republican. 

Jake  Prillman: 

Mr.  Franklin  shows  that  voter  came  from  Franklin  County,  Virginia  [misprinted 
"West  Virginia"]  in  May,  1888,  and  was  employed  by  the  Houston  Coal  and  Coke 
Company  (p.  334-5). 

George  Brown: 

By  W.  R.  .iacobs  it  is  shown  that  Brown  worked  at  Pocahontas,  Virginia,  where 
he  resided,  from  November,  1887,  to  May,  1888  (p.  369).  By  M.  Bloch,  that  he  was 
registered  as  a  voter  in  Virginia  in  1888  (p.  369.). 

Sam  Ross: 

It  is  shown  by  J.-M.  Myles,  foreman  Cooper  Company,  that  voter  was  a  Republican ; 
voted  that  ticket ;  that  he  came  in  the  early  part  of  the  year  1888  fr-^m  Virginia,  where 
he  claims  his  home  (p.  266-7;  returned  home  to  Virginia  in  December,  1888. 

Wiley  Smith: 

It  is  shown  by  M.  C.  Franklin  that  voter  came  from  Virginia,  his  home,  in  August, 
1888,  and  entered  the  employment  of  the  Houston  Coal  and  Coke  Company  (p.  334-5). 

Wm.  H.  Terry: 

The  same  facts  are  shown,  as  are  shown  in  regard  to  Smith,  above,  by  same  witness 
(p.  266-7). 

John  Terry: 

Substantially  the  same  facts  shown  to  exist  as  in  regard  to  the  last  voter  by  same 
witness  (p.  266-7).  In  addition  Mr.  Solomon  testifies  that  he  is  a  single  man,  and 
came  from  Virginia  in  October,  1888  (p.  234). 

J.  S.  Wade: 

Williamfton  shows  (p.  291,)  that  he  was  brought  from  his  home  in  Virginia  ifi 
March,  1888.  In  April  following  it  is  shown  by  Mr.  Franklin  (p.  334-5)  that  he 
claimed  Virginia  as  his  home  and  was  employed  by  the  Houston  Coal  and  Coke 
Company. 

Wm.  Davis: 

Mr.  Bloch  shows  t|iat  voter  was  registered  as  a  voter  in  Virginia  in  1888  (p.  369); 
it  is  also  shown  by  R.  J.  Jennings  (p.  369-70)  that  he  resided  in  Virginia  during  the 
twelve  months.  It  is  shown  by  B.  F.  Hodge  voter  resided  in  Pocahontas,  Virginia, 
shortly  before  July  Ist,  1883  (p.  370).    Mr.  Hodge  was  mayor  of  Pocahontas. 


m'ginnis  vs.  alderson. 


675 


J.  H.  Tate: 

It  is  proven  by  Thos.  Falconbriclge  that  Tate  voted  the  Republican  ticket,  that  he 
came  direct  from  Pocahontas,  Virginia,  where  he  lived,  and  commenced  work  August 
23,  1888,  his  home  being  previously  in  Virginia  (p.  '312). 

Wesley  Wagner:  ' 

J.  C.  Freeman  (pp.  371-2),  testifies  that  Wagner  voted  at  this  precinct;  was  a 
Republican,  and  had  not  been  in  the  State  for  twelve  months;  having  come  first  in 
February,  18:8. 

These  voters  names  are  all  fonnd  ou  the  poll-book  of  Perry  Bottoms 
precinct.  Taking  into  consideration  the  facts  proved  generally  per- 
taining to  these  voters  and  those  relating  to  them  individually  and  we 
have  satisfactory  proof  that  these  36  votes  should  be  deducted  from 
contestant's  vote,  thus  increasing  Alderson's  plurality  by  that  number. 
Starting  then  with  his  majority  of  7  on  the  corrected  returns,  adding 
the  13  illegal  votes  conceded  and  this  illegal  36,  and  we  have  56.  If 
we  deduct  from  this  the  16  claimed  by  the  committee  to  have  been 
illegally  cast  for  contestee  and  he  still  has  40  plurality  before  proceed- 
ing to  consider  some  300  other  illegal  votes  cast  for  contestant.  From 
this  time  on  we  shall  give  only  the  names  of  such  illegal  voters,  the 
names  of  the  witnesses,  pages  of  the  record  on  which  their  testimony 
is  found. 

Mayberry  precinct,  poll-list  of  350. 


No. 


56 
55 
123 
71 
90 

72 

77 

4 

20 

122 

129 


124 
46 


126 


85 

100 
47 
43 
86 

120 
66 


61 


Voters. 


Robert  Law 

Lewis  Law 

T.  H.  Moaely  (misprint,  Mosen) 

Lowry  J  one's  

William  Price 


Abo  Helm 

Marshall  Clark. 
Thomas  Clark.. 
M.  C.  Clark.... 
G.  "W.  Wilson.. 
Minnis  Wade... 


Mason  Thor-O^ton  . 


Green  Scott . 


Laz  Dillard. 


Alex,  stokes . 


J.  Napor , 

J.  W.  MarshaU* 


"Wm.  Old  (misprint,  Oes) . 


Wm.  Hardy 

Clem  Green 

Wm.  Wooton 

"Wash.  Hardy 

Thomas  C hauler 
George  Brown — 


M.  Robinson . 


"Witnesses. 


R.  L.  Weaver 

...do 

...do 

...do  

J.  H.  Clare 

"Wm.  Block 

"Wm.  Williamson  . 

...do  

...  do 

...do  

...do 

....do 

...do 

R.  L.  "Weaver 

S.  Bechek 

S.  C.  Bemheim  ... 
S.  M.  "Williamson. 

"Williamson 

Block 

Clare  

"Weaver 

Clare  

Falconbridge 

Clare  

Falconbridge 

Clare 

"Weaver 

"Williamsou 

Falconbridge 

Solomon 

Falconbridgo 

— do 

...do 

...do  

...do 

Solomon 

"Williamson 

Jacobs 

Block 

"Williamson 

Falconbridge 


Page  of 
record. 


283 

283 

283 

283 

250 

369 

290 

290-299 

290-299 

290-299 

290-299 

292 

292 

283 

330 

432 

290,291 

290 

369 

250 

282,  283 

250 

312 

250 

312, 313 

250, 251 

282 

290, 291 

312, 313 

234 

312 

312 

312 

313 

312 

234 

290 

367 


290 
312 

*No  one  can  examine  the  testimony  in  this  case  withontbeing  convinced  beyond  a  rea.son.-ible  donbt 
that  the  vote  should  be  rejected  from  contestants  ;  yet  the  committee  have  overlooked  it,  along  with 
many  others  ctjaally  as  well  impeached.  This  instance  will  do  for  the  comparison  heretofore  sug- 
geete<l. 


676 


m'ginnis  vs.  alderson, 

Mayherry  precinct  poll-list  o/350 — Continued. 


No. 


Voters. 


■Witnesses. 


Page  of 
record. 


13 

41 
33 
75 
.53 
42 
102 

98 


Henry  James . . 

Hardy  Green*. 
A.  L.'  Oalhoan . 

Geo.  Helm 

Geo.  Clark 

Albert  Clark .. 
Jeff.  Shelton  .. 


C.  E.  Goodwin 


"WiHiamnon 

Falc<.nbridg.e ... 

...  do 

....do  

Williamson 

C.  E.  Kusmisell- 
...  do 

Bechet 

Berolieim 

Young 

Pay-roll 

do 


312, 
312 
290, 


229, 
308, 


291 
312 
313 
313 
201 
327 
327 
230 
432 
309 
303 
329 


*  This  man  confessed  that  he  had  voted  when  he  had  no  right  to,  and  ran  away  to  avoid  tronble  and 
has  never  been  back  since. 

Here  are  33  more  illegal  votes  proven  to  have  been  cast  for  contest- 
ant. Their  rejection  increases  the  plurality  of  coutestee  to  73.  Hav- 
ing established  the  election  of  the  sitting  member  beyond  a  reasonable 
doubt,  the  only  illegal  voters  hereafter  cited  out  of  some  146  others, 
which  are  clearly  proven  to  have  been  cast  for  contestant,  will  be  such 
as  afford  striking  instances  for  the  comparison  with  th3  findings  of  the 
committee.  We  shall  give  the  references  to  the  particular  testimony 
in  each  case,  again  calling  attention  to  the  general  testimony  which 
must  be  applied  also  : 

Mercer  County — Mill  Creek  Precinct. 
Voter.  Record. 

173.  William  Brown 108,  266,  267,  302,  291.366 

mfiRKiSS^I '^'.3"'-^" 

14.  MiltouOtrey 277,284,303 

209.  Armistead  Otrey 277,  284,287,307 

23.  Ambrose  Mills .' 287,303,  307,368 

145.  David  Sales 277,287,289 

97.  Charles  H.  Howard 284,291,303 

34,  Charles  Johnson 290,362 

214.  John  Saunders 312,313 

31.  James  Jarvis 287,  303-305,  384-:385 

48.  Tom  Morton 30.3-307,368 

61.  Moses  Johnson 285,  303-307 

141.  Silas  Johnson* j^ 

55.  Bullet  Smoot* 

77.  Peter  Parker* 

62.  Elijah  Perkins* : 

26.  Green  Sheppard* 

144.  Granville  Toler* 

182.  Philip  Turner* 

112.  William  Anthony* 

117.  Jerry  Richardson 284,290-291-292,302-305-306 

74.  George  Shazier 284 

211.  Thos,  Saunders 284 

16.  J.  H.  Bramwell 234,285,307,335,353 

170,  DnkeCobbs 284,302-307 

Wilson  Booker 303-306-307,321 

Henry  Woodson 290-321 

Wm.  Estis 304,322 

Green  Shephard 268,306-307 

Keaton  Winston 284, 290-291-292, 304-306-321 

*  The  same  witnesses  testifying  as  to  Moses  Johnson  te.stify  substantially  the  same 
as  to  these  voters,  only  differing  in  regard  to  dates.  In  addition,  R.  W.  Jacobs  tes- 
tifies in  regard  to  the  last  (Anthony)  that  be  worked  in  Virginia  during  the  month 
of  December,  1888.  In  regard  to  Bullet  femoot,  M.  Block  testifies  he  was  registered 
as  a  voter  in  Virginia  for  1888  (p.  369). 


m'gINNIS    vs.    ALT5ERS0N.  677 

Simmons  Creek  Precinct. 

Samuel  Willburn 229,230 

John  L.  Smith 359 

York  Scales 229,230,338 

Caleb  Wilcher 229,230,338,270,271 

J.  D.  Holland 229,230,271 

Geo.  Price 229,230,3:^,270,271 

James  Hackney 229,230,338,270,271,369 

Harris  Hoyd 229,230,338 

Willis  Hayden 229,230,338 

George  Williams 304,307,369 

Chas,  E.  Hallowell 229,230 

King  Lee 230 

John  Crenshaw* 368 

Ernest  Freeman,  alien 265 

Thomas  Hightower 273,275,289 

Chas.  Polk 275,302,307,368,369 

James  Cook , 262,359 

Cross  Roads  Prednct,  Beaver  Pond  District. 

David  M.Jones 239,290,291 

G.  B.  Smith 239,240,290,291,332 

James  Glover 239,240,243,331,354 

Ben  Perry 239,240,354 

Hannibal  Smith 239,240,258,354,355 

James  Weaver 239,240,290,291 

C.  M.  Spencer 239,240,290,291 

W.  H.Smith .239,240,290,291 

Chas.  Lee ,..332, 354, .356, 431 

Oak  Vale  Prednct. 

Isaac  Porterfield 248,337,346,347 

George  Saunders , , 248,256,237 

Thos.  Saunders 248,256,237 

James  Wall 248,249,346,347 

These  61  illegal  votes  cast  for  contestant  should  be  deducted  from  his 
vote,  which  increases  the  certain  plurality  of  the  sitting  member  to  134. 
There  are  still  a  large  number  that  should  be  treated  in  the  same  way. 

Monroe  County. 

Alexander  Haines,  felon ,,  380 

W.  L.  Ballantine 375,376,377 

James  McDaniel 378 

Philip  Williams 373,374 

Nicholas  County. 

W.  E.  Camp 116,117,386 

George  A.  Rennick 392,393,394 

J.  A.Martin  (five witnesses) 381,382,385 

James  Lea  (five  witnesses) 31*9, 390 

A.  L.  Godfrey  (four witnesses) 390,391 

J.  H.  Props  (three  witnesses) 386,387 

Raleigh  County. 

James  Kidwell  (Eidwell) 395,396,399,400 

Wm.  Kidwell  (Ridwell) 395,396,399,400 

George  E.  Fisher 395,396,398,399 

James  C.  Maynor 398,399,400 

Clark  E.  Stover 397,398,399,400,401 

*  Also  pay-rolls. 


678  m'ginnis  vs.  alderson. 

Summers  County. 

Anthony  Rollins,  J.  B.  Chapmau,  W.  M.  Wright,  G.  W.  Given,  H.  D.  Rich- 
ards, Robert  Brown,  Wash.  Jackson,  Howard  White,  Wash.  Carter,  J.  W. 
Wood 404,  407,  408,413,414 

L.  L.  James,  S.  D.  Henderson,  Peyton  Williams 404,  405,  4U6,  407,  406,  413,  414 

Tom  Worley,    Robert   Berkley,    Robert    Carter,   Wyatt  Wingfield,  Elijah 

Berkley 405,  406,407,  408,413,414 

A.  L.  Moody,  John  Johnson,  Powell  Booker,  Wash.    Taylor,  Jos.  Smith,  D.  T. 

Nicholas,  Lewis  Lee,  and  Lewis  Paine. 

By  L.  T.  Marshall,  that  said  voters,  except  Powell  Booker  and  Wash.  Taylor  were 
brought  from  Frederick's  Hall,  Virginia,  on  March  8,  1888,  where  their  homes  were 
and  where  they  lived.  Said  Booker  and  Taylor  came  from  Keniucky  inside  of  the 
year  preceding  said  election ;  that  all  of  said  voters  were  negroes  and  laborers  on  the 
construction  force  of  the  C.  and  O.  R.  R.  at  time  of  said  election ;  they  lived  in  a 
box-car  wherever  they  stopped  along  the  line  (p.  410).  By  G.  D.  Haynes  and  N.  J. 
Lute  that  same  facts  existed  as  to  these  voters  as  to  L.  L.  Jones  (pp.  405,-6-7).  By 
E.  H.  Peck  and  Walter  Bonde  (see  note  pp.  404,-7-8  and  pp.  413,  414). 

In  this  county  the  illegal  voters  are  grouped  together  because  the 
testimony  so  groups  them.  The  committee  speaks  of  this  evidence  as 
wholesale.  It  is  appropriate  that  the  testimony  should  be  of  the  same 
character  as  the  frauds  perpetrated.  Careful  scrutiny  will  show  no 
defect  in  the  proof  that  at  least  26  illegal  votes  were  cast  in  this  county 
for  McGinnis. 

Upshur  County, 

Andrew  Grubb 41.5-17-20-22 

B.  W.  Phillips 417-20 

E.  L.  Smith 416-17-18-21 

Webster  County. 

Wni.  R.  Hosey  (five  witnesses) 424-25 

W.  A.  Gawthrop  (four  witnesses) 424-25 

Kanawha  County. 

Obadiah  Bayes,  Thomas  Bayes,  Rhodes  Bayes o 216,223 

Lemuel  Stricklin 188.215-216 

Albert  Ross 187-9,203 

We  have  now  shown  that  the  sitting  member  has  a  clear  plurality  of 
at  least  174  votes.  To  reach  this  conclusion  we  have  not  claimed  for 
him  the  benefit  of  a  large  number  of  illegal  votes  cast  for  contestant, 
and  fairly  proved.  We  have  insisted  upon  no  technicalities  to  enable  us 
to  effect  this  result.  We  submit  the  passage  of  the  following  resolutions 
as  substitutes  for  those  recommended  by  the  committee. 

Resolved,  That  James  H.  McGinnis  was  not  elected  as  a  Eepresenta- 
tive  in  the  Fifty-first  Congress  for  the  Third  Congressional  district  of 
West  Virginia,  and  is  not  entitled  to  a  seat  as  such  Representative. 

Resolved.  That  John  D.  ^Iderson  was  duly  elected  to  the  ofiice  of 
Eepresentative  in  the  "Fifty-first  Congress  for  the  Third  Congressional 
district  of  W^est  Virginia,  and  is  entitled  to  retain  his  seat  as  such 
Representative. 

Jos.  H.  OUTHWAITE. 

C.  F.  Ceisp. 

Chas.  T.  O'Feeeall. 

Levi  Maish. 

L.  W.  MOOEE. 


JOHN  M.  CLAYTON  vs.  0.  E.  BRECKINRIDGE. 


SECOND  ARKANSAS. 


Clayton  served  a  notice  of  contest  on  Breckinridge,  charging  that  the 
result  of  the  election  was  obtained  by  ballot-box-stealing,  intimidation, 
and  false  counting,  and  took  some  testimony,  but  while  still  in  process 
of  taking  testimony  he  was  assassinated  by  some  one.  A  subcommittee 
of  the  Committee  on  Elections  was  appointed  to  proceed  to  Arkansas 
and  take  testimony  "in  regard  to  the  methods  of  said  election,  to  the 
contest,  and  all  events  relating  thereto  or  arising  therefrom  after  said 
election,  and  as  to  whether  the  contestant  or  the  contestee,  or  either  of 
them,  was  lawfully  elected." 

Acting  under  the  terms  of  the  resolution,  the  subcommittee  took  testi- 
mony in  regard  to  the  killing  of  Mr.  Clayton,  and  a  number  of  other 
murders  and  disturbances  alleged  to  have  been  connected  with  the  elec- 
tion or  contest,  and  a  discussion  of  the  facts  of  these  cases  will  be  found 
in  the  report.  Upon  the  question  of  the  contest  proper,  the  committee 
find  that  by  counting  the  votes  in  the  Plummerville  box,  which  was 
stolen,  as  they  are  proved  in  the  evidence  to  have  been  cast,  the  majority 
of  Breckinridge  is  considerably  reduced,  and  that  the  remainder  of  his 
majority  is  overcome,  and  a  majority  shown  for  Clayton  by  rejecting  the 
returns  of  other  precincts  proved  to  be  fraudulent,  and  counting  the 
votes  proved  aliunde. 

The  minority  find  that,  except  as  to  Plummerville,  the  evidence  is 
insufficient  to  establish  the  charges,  but  that,  even  if  the  testimony  of 
the  voters  who  testify  as  to  how  they  voted  is  to  be  believed,  all  the 
votes  in  the  boxes  attacked,  which  are  not  proved  to  have  been  cast  for 
Clayton,  should  be  counted  for  Breckinridge.  This  rule  should  be  ap- 
plied because  of  the  unfairness  of  the  investigating  committee  in  not 
taking  the  testimony  of  the  voters  who  voted  for  Breckinridge,  as  well 
as  of  those  who  voted  for  Clayton,  and  because  this  is  not  a  contested 
election  case,  and  the  rules  of  evidence  established  in  contested  election 
cases  do  not  apply. 

The  resolutions  presented  by  the  commit ee,  declaring  that  Clayton 
was  elected  and  recommending  that  on  account  of  his  death  the  seat  be 
declared  vacant,  were  adopted  by  the  House  September  5, 181)0,  by  a 
vote  of  105  to  63.  The  debate  will  be  found  on  pages  9559  to  9751  of 
the  Kecord. 

679 


680  CLAYTON    VS.    BRECKINRIDGE. 

(1)  Effect  of  court  trials. 

The  result  of  a  trial  in  a  criminal  case  where  parties  were  charged 
with  election  frauds  is  not  an  adjudication  binding  on  the  House  in  a 
case  involving  the  same  frauds. 

(2)  Impeached  returns. 

When  returns  are  impeached  they  can  not  be  received  for  any  pur- 
pose, but  only  those  votes  proved  aliunde  can  be  counted. 

"  If  the  returns  have  been  falsified  by  the  election  officers  it  is  a  well- 
settled  rule  [of  law  that  they  cease  to  have  any  prima  facie  effect,  and 
each  party  can  only  be  credited  with  such  votes  at  the  box  in  question 
as  he  may  show  by  other  evidence.  This  rule  is  one  of  long  standing. 
It  worljs  no  hardship  upon  contestee  which  does  not  fall  as  heavily  on 
the  contestant.  The  contestant  is  required  in  the  first  instance  to  show 
the  fraud  in  the  return,  and  then  must  follow  that  up  by  proving  his 
vote;  or,  in  some  instances,  the  proff  of  the  fraud  is  connected  with 
the  proof  of  his  vote." 

(3)  Estoppel  hy  swearing  in  of  contestee. 

No  sort  of  estoppel  can  arise  from  the  fact  that  contestee  was  sworn 
in  with  other  members  at  the  beginning  of  the  session. 


IlEPOKT. 


August  5,  1890. — Mr.  Lacet,  from  the  Comraittee  on  Elections,  sub- 
mitted the  following  report: 

A  subcommittee  "was  appointed  to  take  testimony  in  this  cause,  con- 
sistiug  of  Messrs.  Lacej,  Cooper  of  Ohio,  Bergen,  Maish,  and  Wilson 
of  Missouri.    Most  of  the  evidence  was  taken  by  them  in  Arkansas. 

After  the  evidence  had  been  reported,  the  case  was  argued  before  the 
full  committee.  We  will  endeavor  to  embrace  the  action  of  the  full 
committee  and  of  the  subcommittee  in  one  report. 

At  the  November  election,  in  1888,  Hon.  C.  R.  Breckinridge,  of  Jeflfer- 
son  County,  Ark.,  and  i^on.  John  M.  Clayton,  of  the  same  county,  were 
the  nominees  of  their  respective  parties  for  Representative  in  Congress 
from  the  second  Arkansas  district.  Major  Breckinridge,  the  Dem 
ocratic  nominee,  was  a  member  of  the  Fiftieth  Congress,  and  was  well 
known  in  the  district  and  in  the  nation  at  large.  Colonel  Clayton,  the 
Republican  nominee,  had  been  sheriff  of  his  county  and  State  senator, 
and  was  well  and  favorably  known  in  this  district.  Colonel  Clayton 
was  a  vigorous  and  skillful  campaigner,  and  the  interest  attendant 
upon  a  Presidential  election  and  the  uncertainty  of  the  result  excited 
active  efforts,  and  rendered  the  return  of  Major  Breckinridge  uncertain. 
The  result  in  the  gubernatorial  contest,  in  September,  previous,  when 
the  Farmers' Alliance  or  "Wheelers"  had  nominated  a  ticket  which 
was  indorsed  by  the  Republicans,  and  at  which  it  was  confidently 
claimed  that  the  fusion  ticket  had  been  elected  and  counted  out,  had 
excited  high  party  feeling.  The  fact  that  Norwood,  the  fusion  candi- 
date, had  run  ahead  of  Eagle,  Democrat,  for  governor,  by  3002  votes 
in  the  district  led  the  Republicans  to  hope  for  and  the  j3emocrats  to 
fear  the  result. 

Charges  of  fraud  in  the  September  State  election  were  freely  madia, 
and  Federal  supervisors  were  selected  to  watch  the  election  and  returns 
at  the  November  election. 

The  contestee  received  the  governor's  certificate  by  a  majority  certi- 
fied as  amounting  to  846,  and  has  not  only  taken  part  in  the  organiza- 
tion of  the  House,  but  has  during  this  contest  filled  the  exalted  place 
of  a  member  of  the  Committee  on  Ways  and  Means.  It  is  undisputed 
that  between  400  and  500  of  Clayton's  majorities  were  lost  to  him  by 
the  forcible  stealing  of  a  ballot-box,  and  that  the  results  were  certified 
by  the  governor  with  this  box  wholly  ignored.  These  facts  would  reduce 
the  claimed  majority  of  the  contestee  to  somewhere  between  300  and 
400.  The  men  who  stole  the  ballot-box  were  white  men,  whose  faces 
were  partly  masked.  That  there  was  a  very  large  majority  for  contest- 
ant in  the  stolen  box  is  nowhere  denied. 

681 


682  CLAYTON    VS.    BRECKINRIDGE. 

The  contestant  charged  very  many  frauds  and  irregularities  in  the 
conduct  of  the  election,  and  the  contestee  denied  the  same,  and  they 
IJroceeded  to  take  testimony  to  prove  up  their  allegations. 

ThePlunimerville  stolen  lx)x  could  not  well  be  disputed,  although  at 
the  September  election,  where  there  were  no  Federal  supervisors,  and 
where  the  judges  were  all  Democrats,  the  vote  was  returned  as  giving 
a  Democratic  majority  of  76. 

Conway  County  was  the  most  excited  scene  of  the  contest,  and  the 
methods  of  the  election  and  the  dangerous  practices  there  used  have, 
in  the  light  of  the  subsequent  events  attracted  the  attention  of  the 
nation.  Before  the  September  election  Conway  County  was  well  known 
to  be  strongly  Kepublican.  The  county  officers  were  all  Republi- 
can. An  organized  effort  was  made  to  carry  the  county  for  the  Democ- 
racy. One  Stowers,  who  had  recently  come  from  Missi.ssii)pi,  organized 
a  militia  company,  which  was  not  only  armed  by  the  governor  but  fur- 
nished with  an  abundance  of  ammunition.  It  was  composed  exclusively 
of  Democrats.  The  report  was  current  that  it  was  organized  to  advance 
the  interests  of  the  party  to  which  all  of  its  members  belonged.  The 
Republican  majority  in  the  county  was  largely  composed  of  colored 
men,  who  became  timid  and  fearful  that  these  arms  were  to  be  used  at 
the  election,  and  the  belief  became  prevalent  that  force  and  fraud  were 
to  be  used  to  carry  the  county  against  the  unquestioned  majority  of 
Republican  voters 

At  Plummerville,  which  was  the  Republican  stronghold,  Democratic 
judges  and  clerks  obtained  control  of  the  election,  and  at  a  previous 
election  an  attempt  was  made  to  knock  over  and  steal  the  box  by  Dem- 
ocrats in  the  room,  one  Dr.  White  actively  participating  in  the  at- 
tempt. On  that  occasion  the  lights  were  extinguished  with  the  excep- 
tion of  one,  and  the  attempt  to  i)revent  the  counting  of  the  vot«  was 
defeated  by  the  one  light  being  sutiicient  to  enable  witnesses  to  identify 
the  wrong-doers.  This  wrongful  attempt  was  made  wholly  by  Democrats, 
and  in  view  of  the  previous  frauds  the  Re{)ublicans  entertained  and 
expressed  great  fears  of  a  theft  of  the  ballot  box  in  November.  Boxes 
had  been  stolen  in  other  counties  at  the  September  election,  the  thefts 
in  every  case  inuring  to  the  benefit  of  the  Democracy,  and  it  was  but 
natural  that  a  crime  of  this  character  should  be  antici[)ated  and  feared. 

M.  D.  Shelby  obtained  the  office  of  sheriff  of  the  county  at  the  Sep- 
tember election,  and  had  entered  on  his  duties  before  the  Congres- 
sional election.  He  professed  much  anxiety  to  have  "a  fair  election 
and  an  honest  count"  at  Plummerville,  and  for  that  ostensible  purpose 
a})pointed  from  12  to  20  deputy  sherift's,  all  Democrats,  to  attend,  and 
see  that  such  a  desirable  result  might  be  accomplished.  He  ajiijointed 
as  deputy  at  Plummerville  one  of  the  men  who  attempted  to  steal  the 
box  on  the  occasion  referred  to,  and  one  of  the  others  who  took  part 
in  this  attempt  was  made  one  of  the  judges  of  election.  He  appointed 
among  this  list  Robert  Pate,  a  saloon-keeper  at  Plummerville,  and  Bert 
Wall}',  his  bar-tender,  and  a  number  of  strong  Democratic  partisans 
from  Morrilton,  the  county  seat,  which  is  about  7  miles  distant  from 
Plummerville. 

These  men  appeared  upon  the  scene  in  time  for  the  opening  of  the  polls, 
which,  under  the  Arkansas  law,  is  8  o'clock  a.  m.  The  judges  of  the  elec- 
tion consisted  of  two  Republicans  and  one  Democrat.  The  Democrat, 
Thomas  C.  Hervey,  had  been  appointed  by  the  county  judge  in  vaca- 
tion, and  to  set  at  rest  all  questions  as  to  the  validity  of  his  appoint- 
ment the  county  judge  had  suggested  that  Mr.  Hervey's  appointment 


CLAYTCN   VS.    BRECHINEIDGS.  683 

should  bo  confirmed  by  the  voters  at  the  time  of  opening  the  polls. 
Accordingly,  one  of  the  Kepublican  judges  nominated  Hervey  as  a 
judge  of  the  election,  and  the  assembled  voters,  regardless  of  party, 
voted  for  him  and  confirmed  his  appointment.  Mr.  Hervey  then  an- 
nounced that  this  was  an  attempt  to  question  his  authority,  and  that  he 
would  also  submit  to  the  voters  who  the  other  judges  should  be,  and 
nominated  Mr.  Hobbs  and  Mr.  Palmer  as  judges,  both  Democrats,  and 
put  it  to  vote,  calling  for  the  afiirmative,  and  declining  to  put  the  nega- 
tive, and  at  once  declared  the  Republican  judges  ousted,  who  had  with- 
out question  been  lawfully  selected  by  the  county  court. 

The  Republican  judges  objected  to  this  summary  ejectment  from 
oflSce,  and  insisted  on  taking  part  in  the  election.  The  purpose  and 
character  of  the  deputy  sheriffs  at  once  became  manifest.  They  took 
the  matter  in  hand,  and  prevented  the  two  Kepublican  judges  from  ex- 
ercising their  rights.  The  election  was,  therefore,  held  by  three  Demo- 
cratic judges  and  two  Democratic  clerks.  These  Democratic  deputy 
sherifl's,  though  actively  present  in  the  morning  and  taking  part  in  the 
unlawful  eviction  of  the  Republican  judges,  claim  to  have  been  absent 
when  most  needed  in  the  evening  to  search  for  the  ballot-box  thieves. 
The  disappearance  of  the  deputies  before  the  masked  men  made  their 
appearance,  and  the  fact  that  some  of  them  returned  in  the  rain  to 
Morrilton,  about  dark,  and  there  changed  hats  and  returned  to  Plum- 
merville,  remaining  only  a  few  minutes,  and  disappearing  just  before 
the  box  was  stolen;  the  fact  that  they  rode  home  again  in  the  rain  and 
dark,  one  of  them  losing  his  hat  on  the  way,  very  naturally  led  to  the 
suspicion  that  the  sheriff's  organized  posse  of  deputies  were  parties  or 
privies  to  the  stealing  of  the  box. 

Mr.  Wahl,  the  Federal  supervisor,  seems  to  have  been  a  man  of  much 
nerve  and  presence  of  mind;  he  watched  the  box  constantly,  and  ac- 
companied Mr.  Hervey,  the  same  man  who  had  taken  part  in  a  pre- 
vious trouble  about  the  Plummerville  ballot-box,  and  who  was  one  of 
the  judges,  when  he  took  the  box  to  supper.  Hervey  complained  that 
Wahl  "watched  him  like  a  thief,"  and  subsequent  events  justified  Wahl 
in  his  so  doing. 

The  judges  separated,  and  left  Wahl  and  one  of  the  judges  in  charge 
of  the  box.  After  dark,  some  one  came  to  the  room  where  the  box  was 
and,  looking  into  the  door,  asked  if  they  had  commenced  counting. 
Mr.  Wahl  answered  that  they  had  not.  Mr.  Hobbs,  the  judge,  whose 
back  was  turned  at  the  time,  asked  Wahl  who  that  was^  and  Wahl  re- 
plied that  it  was  O.  T.  Bentley. 

This  same  Bentley  is  still  the  deputy  sheriff  of  the  county,  and  the 
duty  of  capturing  the  murderers  of  Clayton  and  thieves  of  the  ballot- 
box  has  been  largely  intrusted  to  him.  He  has  been  in  a  position  to 
know  all  that  the  governor  and  other  State  ofiScials  have  been  doing  to 
disclose  the  crimes  in  Conway  County.  A  few  minutes  after  Bentley, 
or  the  man  whom  Wahl  recognized  as  Bentley,  disappeared,  four  men 
with  handkerchiefs  over  their  faces  and  with  revolvers  in  hand  entered 
and  took  the  ballot-box  and  poll-books  away  by  force.  Mr,  Hobbs  says 
that  they  had  white  faces,  and  there  was  no  evidence  to  the  contrary. 
In  the  light  of  these  well-known  facts  it  is  strange  that  contestee  should 
have  charged  that  the  ballot-box  with  nearly  500  Republican  majority 
was  st©len  by  Republicans.  But  he  does  so  in  his  answer  in  the  fol- 
lowing language: 

I  deny  that  the  poll-books  and  ballot-box  were  taken  by  partisans  of  mine,  and 
charge  that  they  were  taken  by  partisans  of  yours. 


684  CLAYTON    VS.    BRECKINRIDGE. 

After  the  coutest  was  coramenced,  a  number  of  persons  were  indicted 
for  violating  the  election  laws  at  Plummerville,  and  among  them  said 
O.  T.  Bentley. 

Rewards  were  oftered  for  the  conviction  of  the  thieves,  and  much  ap- 
prehension prevailed  among  them,  for,  although  they  manifested  but 
little  fear  of  the  local  authorities,  they  did  not  relish  a  contest  in  the 
Federal  courts.  Mr.  Bentley  opened  up  negotiations  for  a  settlement  of 
the  indictments  by  having  the  amount  of  Clayton's  majority  at  Plum- 
merville conceded.  He  assumed  to  act  for  the  thieves,  and  was  evi- 
dently in  communication  with  them.  The  attempted  settlement  failed, 
and  Colonel  Clayton  proceeded  to  take  his  testimony  at  Plummerville. 

However,  before  proceeding  to  this  part  of  the  transaction,  let  us  re- 
turn to  some  other  events. 

MURDER  OP  JUDGE  BENJAJillN. 

Hon.  M.  W.  Benjamin,  a  well-known  Eepublican  of  Little  Rock,  was 
sent  to  Morrilton  the  day  before  the  election  to  confer  with  the  Repub- 
licans there,  and  to  arrange,  if  i)08sible,  to  prevent  the  anticipated 
frauds.  His  coming  was  announced,  and  as  he  got  off  the  train  a  mob 
stood  ready  to  receive  him.  He  was  knocked  down,  beaten,  and  shot 
in  the  head  with  a  leaden  ball  from  what  is  called  in  Conway  County  a 
*'  beau-shooter."  These  "  beau-shooters  "  are  a  dangerous  device,  and, 
when  used  by  a  skillful  hand,  may  kill  birds  and  squirrels,  or  even  men. 
The  ball  entered  Mr.  Benjamiu's  head  over  the  eye,  but  did  not  fracture 
the  skull.    It  was  cut  out  by  a  surgeon. 

Mr.  Benjamin  returned  home  to  Little  Rock,  complaining  of  his 
bruises  and  wounds,  and,  in  three  weeks  after,  died  of  '*  heart  failure" 
l)roduced  by  the  shock,  as  his  physician  testifies.  Though  a  large 
crowd  was  present,  no  one  has  ever  been  punished  for  this  crime. 

ATTEMPTED  MURDER  OF  SUPERVISOR  WAHL. 

After  the  theft  of  the  ballot-box  Wahl  remained  in  the  neighborhood. 
He  was  an  important  witness  in  the  Federal  prosecutions.  One  night 
he  was  playing  cards  in  a  doctor's  office  at  Plummerville,  the  same 
Dr.  White  before  referred  to  being  one  of  the  players.  Wahl  changeil 
places  with  White  at  the  table  after  playing  until  a  late  hour  of  the 
night.  When  he  had  changed  his  place  at  the  table  he  was  near  a 
glass  door  leading  outside  from  the  office.  Some  one  shot  him  through 
the  door  from  the  outside,  inflicting  a  dangerous  wound  in  his  neck 
and  head.  The  aim  was  slightly  imperfect,  or  the  ball  glanced  in  pass- 
ing through  the  glass,  or  he  would  have  been  instantly  killed.  In  the 
light  of  these  events  the  temerity  of  Colonel  Clayton  in  going  to  Plum- 
merville to  take  testimony  is  somewhat  surprising. 

MURDER  OF  COLONEL  CLAYTON. 

Colonel  Clayton  had  with  him  at  Plummerville  a  notary,  Mr.  Allnutt, 
from  Morrilton,  and  also  Mr.  Middlebrook,  a  colored  deputy  sherift 
from  Pine  Bluff.  His  baggage  v;as  taken  from  the  de[)ot  to  the  village 
hotel,  but  the  landlord,  although  furnishing  room  and  board  to  Mr. 
Breckinridge's  attorney,  Armstrong,  refused  to  entertain  him,  i)lacing 
his  refusal  on  the  ground  of  illness  in  his  family.  Colonel  Clayton  thou 
procured  boarding  at  the  residence  of  a  widow,  jMrs.  McCraven,  who 
lived  in  the  woods  in  the  outskirts  of  the  town.    Middlebrouk,  the  col- 


CLAYTON   VS.    BRECKINRIDGE.  686 

ored  deputy  sheriff,  insisted  that  there  was  great  danger,  and  declined 
to  stay  at  Plumuierville,  leaving  only  Clayton  and  the  notary.  Colonel 
Clayton  remained  four  days,  taking  testimony  and  sleeping  in  a  room 
which  bad  no  windows. 

On  the  night  of  January  29, 1889,  his  room  was  changed,  and  he  and 
Mr.  AUnutt  were  occupying  a  room  on  the  ground  floor  that  had  a  win- 
dow curtained  with  calico,  a  slit  of  a  few  inches  being  open  in  the  mid- 
dle of  the  curtain.  After  dark  Colonel  Clayton  spent  some  time  in 
walking  backward  and  forward  in*  this  room.  As  the  tracks  subse- 
quently showed,  his  murderers  stood  for  some  time  at  the  window, 
watching  his  motions.  He  finally  sat  down  at  a  table  to  write,  and  the 
instant  that  he  was  seated  the  fatal  shot  came  crashing  through  the 
window.  A  load  of  buckshot  penetrated  his  neck,  almost  severing  the 
head  from  the  body. 

The  State  and  nation  were  horrified.  Rewards  were  offered,  and  the 
community  at  Morrilton,  near  which  the  murder  occurred,  passed  ap- 
propriate resolutions,  but  no  earnest  attempt  to  aid  in  bringing  the 
murderers  to  justice  has  been  made  by  the  local  authorities.  The  efforts 
of  the  governor  have  been  in  vain.  Much  of  the  work  done  has  been 
upon  a  mistaken  line,  and  without  giving  due  weight  to  the  suspicion 
that  should  naturally  attach  to  the  ballot-box  thieves. 

The  object  of  the  sub-committee  was  dual,  to  report  upon  the  issue  as 
to  who  was  elected,  and  to  inquire  as  fully  as  possible  into  the  murder 
itself;  and  they  took  all  the  testimony  available  upon  both  questions. 

KILLING  OF  SMITH,  THE  NEGRO  DETECTIVE. 

We  may  add  that  two  other  deaths  have  occurred  that  were  the  proper 
subjects  of  inquiry  connected  with  or  growing  out  of  the  murder  of  Col- 
onel Clayton.  One  Joseph  Smith,  a  negro,  was  acting  as  a  detective 
in  Conway  County,  and  was  killed  by  a  young  man  named  Richmond. 
Richmond  was  the  son  ot  Republican  parents,  and  was  abount  nine- 
teen years  old.  The  grand  jury  of  Conway  County  refused  to  indict 
him.  Ordinarily  there  would, be  nothing  in  the  facts  and  circumstances 
surrounding  this  homicide  to  necessarily  connect  it  with  the  Clayton 
case,  but  the  manner  of  the  killing  of  Smith  was  involved  in  much  ob- 
scurity, and  the  fact  that  Smith  had  been  communicating  and  acting 
as  a  detective  with  the  Pinkerton  Agency,  and  the  further  fact  that 
another  detective  had  been  driven  out  of  Plummerville,  could  not  fail 
to  lead  the  sub-committee  to  inquire  into  and  suspect  the  probability 
that  the  killing  of  this  detective  had  some  bearing  on  the  Clayton  mur- 
der. The  failure  to  indict  young  Richmond  had  prevented  any  very 
thorougli  investigation  of  the  facts. 

KILLING  OF  GEORGE  BENTLEY. 

George  Bentley,  the  town  marshal  of  Morrilton,  a  brother  of  O.  T. 
Bentley,  was.suspected  of  being  one  of  the  ballot-box  thieves.  He  was 
one  of  the  parties  who  went  from  Morrilton  to  Plummervilleon  the  night 
of  the  election.  He  opened  communication  with  the  Pinkerton  Agency, 
and  during  the  time  he  was  negotiating  to  become  a  Government  wit- 
ness and  expose  the  guilty  parties  he  too  was  killed.  A  strange  fa- 
tality seemed  to  attend  persons  who  communicated  with  the  detectives. 
He  was  said  to  have  been  accidentally  shot  by  O.  T.  Bentley.  his  brother. 

There  is  no  direct  evidence  to  show  that  tliere  was  anything  criminal 
in  the  killing  of  Bentley  by  his  brother,  as  the  shooting  was  done  in 
the  presence  of  a  single  witness.  Wells,  who  was  also  one  of  the  parties 


686 


CLAYTON   VS.    BRECKINRIDGE. 


indicted  for  the  ballot-box  theft;  and  it  was  claimed  that  O.  T.  Bentley 
was  handling  a  breech-loading  revolver  at  the  time.  It  is  unfortunate 
that  George  Bentley  should  have  been  killed  before  making  the  full  dis- 
closures which  were  expected,  and  that  the  negro  JSmith  should  have 
been  killed  while  making  investigations  and  reports  to  the  detectives. 
In  the  light  of  the  other  murders  and  attempted  murders  the  coinci- 
dence of  the  killing  of  these  two  men  can  not  be  viewed  without  sus- 
picion. With  all  these  circumstances  disclosed  the  sheriff*  of  Couway 
County  has  subjected  himself  to  severe  criticism,  to  say  the  least  of  it, 
by  retaining  O.  T.  Bentley  as  his  deputy  during  the  whole  time  that  has 
elapsed  since  the  murder  and  during  the  time  when  the  sheriff  was 
claiming  to  be  on  the  hunt  of  the  criminals. 

THE  HOOPER  THEORY  OF  THE  MURDER. 

Upon  the  arrival  of.  the  subcommittee  at  Little  Rock  they  found 
just  published  dispatches  and  interviews  in  which  the  contestee  claimed 
that  the  whole  case  would  be  made  clear,  and  it  was  claimed  that  a  man 
named  Thomas  Hooper,  now  dead,  who  recently  lived  in  Los  Angeles 
County,  Cal.,  had  killed  Colonel  Clayton  for  revenge.  Thomas 
Hooper  had  some  diflSculty  with  the  State  militia  during  the  recon- 
struction troubles,  and  his  father  was  killed  in  1868,  and  Hooper  had 
not  lived  in  Arkansas  for  about  twenty  years.  He  appears  to  have  en- 
tertained personal  enmity  to  Governor  Powell  Clayton,  because  of  the 
transactions  of  the  militia,  and  had  made  threats  against  Governor 
Clayton  in  his  conversation  with  different  persons.  Hooper  died  some 
time  after  the  murder  of  Colonel  Clayton.  His  violent  talk  in  regard 
to  Clayton  led  one  Sater  to  suspect  him  of  the  murder,  and  he  commu- 
nicated his  suspicions  to  Governor  Eagle  in  the  summe?  of  18SI). 

Mr.  Breckinridge  accepted  this  theory  as  one  which  relieved  his  par- 
tisans in  Arkansas  from  the  charge,  and  on  the  arrival  of  the  subcom- 
mittee at  Little  Eock  they  found  that  contestee  hal,  in  a  published  in- 
terview, announced  that  the  secret  of  the  murder  would  be  made 
known.  The  Hooper  theory  of  the  murder  had  been  kept  a  secret  by 
the  friends  of  contestee,  and  was  brought  to  the  notice  of  the  commit- 
tee after  the  investigation  had  commenced.  My.  Sater  was  sent  tor, 
and  his  evidence  taken,  and  telegraphic  communication  had  with  Los 
Angeles  to  ascertain  whether  Hooper  had  been  absent  from  California 
at  the  time  of  the  murder.  Hooper's  family  returned  to  Arkansas  after 
his  death  and  they  were  examined  and  testified  that  Hooper  was  sick 
with  dropsy  on  his  farm  in  Los  Angeles  County,  Cal.,  in  January,  1889. 

Eeports  from  Los  Angeles  to  different  persons  showed  that  no  cre- 
dence was  attached  by  the  i)eople  there  to  the  theory  that  Hooper  had 
been  away  from  home  in  January,  1889.  The  St.  Louis  Iie}>ublic,  a 
Democratic  newspai)er  of  great  enterprise,  had  adopted  this  theory  of 
the  murder,  and  had  sent  a  correspondent  immediately  to  Hooper's 
neighborhood,  and  the  correspondent  telegraphed  the  result  of  his  in- 
quiries.   We  quote  from  the  record,  page  460. 

JOHN  T.  GINOCCHIO. 
Direct  ex. : 

Mr.  Lacky.  Would  it  be  anything  improper  to  furnish  the  telegram  you  received 
from  St.  Louis  in  regard  to  this  Hooper  matter? 

A.  No,  sir;  not  if  tie  gentleman  is  willing. 

Q.  Produce  it,  please. — A.  I  will  explain  how  I  came  to  receive  this.  I  will  state 
iu  the  evidence  of  Mrs.  Hooper  there  was  some  mention,  it  will  be  remembered,  by 


CLAPTON    VS.    BRECKINRIDGE.  687 

her,  of  names  of  several  gentlemen  in  Los  Angeles,  that  would  corroborate  her  state- 
ment in  many  particulars  ;  so  I  wired  the  editor  of  the  Republic,  Col.  Jones,  to  in- 
struct his  Los  Angeles  correspondent  to  see  those  parties  and  see  if  they  would  cor- 
roborate what  Mrs.  Hooper  stated ;  ho  did  so,  and  to-day  he  sent  me  the  result  of  that 
work.     Shall  I  read  it? 

Mr.  Lacey.  Well,  if  you  please. 

A.  (Reading): 

Los  Angeles,  Cal.,  May  Ut. 

Careful  canvass  of  the  neighborhood  of  Tom  Hooper  fails  to  disclose  any  individ- 
ual who  can  say  positively  that  Hooper  was  at  home  in  January,  1889,  but  all  are 
morally  certain  that  ho  was  there.  For  three  years  previous  to  his  death  he  suffered- 
from  dropsy  and  could  move  ouly  with  difficulty.  Those  kuowing  him  think  the  re- 
port of  he  having  murdered  Clayton  is  absurd. 

George  "W.  Barton. 

The  governor  and  Major  Breckinridge  had  been  working  on  this 
supposed  clue  for  ten  months  or  more,  but  had  kept  it  secret,  so  that 
Colonel  Clayton's  Mends  had  had  no  chance  to  investigate  the  truth  of 
it.  No  one  had  been  sent  to  California  to  see  whether  the  story  wa^ 
true  or  not  and  Sater  claimed  to  have  had  conversations  with  Hooper 
before  his  death  which  would  arouse  suspicion  as  to  Hooper.  The 
theory  was  naturally  a  pleasing  one  to  contestee,  and  no  one  would  blame 
him  for  following  such  a  clue,  though  the  friends  of  Colonel  Clayton 
very  justly  complained  that  so  important  iuformation  should  have  been 
known  for  ten  months  by  contestee  and  concealed  from  them  until  the 
day  of  commencement  of  the  Congressional  investigation. 

Mr.  Breckinridge  in  his  argument  before  the  committee  says: 

He  (Governor  Eagle)  said  General  Clayton  and  his  brother  had  had  oue  of  Pinker- 
ton's  best  men  there  a  long  time,  and  were  reported  to  have  spent  large  sums  in  aid- 
ing him;  that  they,  at  least  General  Clayton  and  the  detective,  had  talked  to  him 
from  time  to  time,  and  he  was  satisfied  they  had  done  so  without  reservation. 

It  would  seem  that  equal  frankness  ought  to  have  been  manifested 
in  informing  Governor  Clayton  of  this  important  clue. 

The  adoption  of  this  theory  would  only,  in  any  event,  have  partly 
solved  the  mystery,  for  there  were  at  least  two  persons  present  at  the 
murder,  as  the  tracks  of  two  persons  at  the  window  fully  showed. 

The  subcommittee  followed  up  this  clue.  They  summoned  Sater, 
now  in  Indiana,  and  all  persons  who  would  likely  know  if  Mr.  Hooper 
had  been  in  Arkansas  at  any  time  during  the  winter  of  1888-'89.  But  it 
clearly  appears  that  Hooper  was  not  only  in  California,  but  was  ill  with 
dropsy  at  the  time,  and  has  since  died. 

No  reasonable  explanation  of  the  murder  of  Colonel  Clayton  appears 
except  that  some  of  the  ballot-box  thieves,  finding  the  taking  of  the 
testimony  progressing,  killed  him,  and  we  believe  the  attempt  to  kill 
Wahl  was  made  by  parties  to  the  same  conspiracy.  No  Clayton 
militia  theory  would  explain  the  attempt  upon  Wahl's  life,  and  the 
evidence  clearly  disproves  any  such  an  explanation  as  to  Colonel  Clay- 
ton's death.  , 

The  necessity  for  the  enactment  of  some  laws  which  will  prevent 
ballot-box  stealing  and  murder  from  conferring  ^  prima  facie  title  to  a 
seat  in  Congress  is  evident  from  the  result  in  this  contest.  Had  such 
laws  been  in  force  as  would  have  prevented  the  contestee  from  taking 
his  seat  with  such  a  title,  no  one  would  have  attempted  to  confer  such 
title  by  stealing  the  ballot-box. 

Evidently  ballot-box  stealing  was  looked  upon  as  a  joke  in  that  com- 
munity until  the  awful  consequences  that  have  resulted  have  appalled 
the  good  people  of  the  county.  It  was  talked  of  and  laughed  about  on 
the  streets  of  Plummerville  the  night  of  the  election. 


688  CLAYTON   VS.    BRECKINEIDGE. 

Major  Breckinridge,  in  his  conversation  with  the  chairman  of  the 
Democratic  committee  of  the  county,  and  Bob  Pate,  has  given  us  au 
idea  of  the  jocular  view  of  such  proceedings  taken  by  them. 

Maj.  C.  K.  Breckinridge: 

Mr.  McCain.  I  would  like  to  say  that  I  call  Maj.  Breckinridge  without  his  request. 

Q.  I  would  like  to  have  you  state  to  the  committee  whether  you  stated  anything 
during  the  campaign  in  1888,  whether  you  stated  just  before  the  election  for  Congress 
in  that  campaign  anything  to  either  encourage  or  discourage  fraud  or  any  kind  of 
interference  in  the  election. — A.  The  only  conversa^^ion  I  had  was  with  Mr.  Arm- 
strong. 

Q.  What  official  position  did  he  hold  in  the  party? — A.  He  was  chairman  of  the 
Democratic  committee  of  Conway  Co.,  and  I  believe  when  Col.  Clayton  and  I  came 
to  Ft.  .Smith  I  wrote  Mr.  Armstrong  to  meet  us  at  Conway,  and  we  all  went  up  to- 
wards Morrilltown  together.  At  Plummerville  Mrigate,  as  I  remember,  and  one  or 
two  others  got  on  the  cars.  Mr.  Pate  was  the  only  name  I  recollect  now.  Mr.  Arm- 
strong and  1  were  sitting  together  and  these  two  gentlemen  took  seats  in  the  rear  of 
ns.  Mr.  Pate  was  telling,  as  if  giving  an  account  of  some  horse-play,  as  I  understood, 
about  the  ballot-box  at  Plummerville  at  the  Sept.  election  which  he  was  referring  to 
and  speaking  of  it  as  a  joke  of  some  kind.  I  then  remarked  to  Mr.  Armstrong,  and 
turned  around  a  little  so  the  other  two  gentlemen  could  hear  what  I  said,  that  I  had 
heard  some  reports  about  the  bailor-box  in  the  Sept.  election,  that  they  were  indefi- 
nite, and  I  know  nothing  of  them,  but  I  had  seen  some  complaints  about  the  ballot- 
boxes  at  perhaps  2  or  3  localities  in  previous  elections,  with  regard  to  the  county 
officers  and  so  on.  I  called  their  attention  to  the  fact  that  in  the  three  Congressional 
races  I  had  made  before  there  had  never  been  complaints  in  any  newspaper  on  the 
part  of  any  individual  about  any  precinct  in  the  second  Congressional  district,  or 
about  any  citizen  in  the  second  Congressional  district,  as  far  as  I  was  acquainted, 
with  the  conversations,  and  with  the  public  press,  and  with  the  talk  of  the  people  I  asso- 
ciated with  ;  that  there  might  be  something  or  there  might  be  nothing  in  these  re- 
ports that  I  had  heard.  I  had  just  come  back  to  the  State.  I  haxl  been  in  the  Presi- 
dential canvass  in  the  State  of  New  York,  and  had  come  back  in  obedience  to  a  tele- 
gram from  Mr.  Hudson,  chairman  of  the  committee,  to  devote  a  couple  of  weeks  to 
my  district,  and  I  trusted  that  nothing  in  jest  or  otherwise — I  told  him  1  hoped 
that  nothing  in  jest  or  otherwise  would  take  place  that  could  be  susceptible  of 
any  misconstruction  in  the  Federal  election  about  to  occur.  I  told  them  that  of 
course  they  would  realize  that  it  would  not  do  to  have  any  performance  of  that  kind. 
That  if  a  box  was  taken,  there  was,  I  believe,  no  instance  where  a  certificate  framed 
upon  such  a  basis  was  ever  permitted  to  stand  by  the  Democratic  House  ;  and  that 
if  the  House  were  Republican,  of  course  it  would  not  be  permitted  to  stand  in  a  Re- 
publican House  in  favor  of  a  Democrat.  And  there  was  more  ;  that  if  my  election 
should  hinge  upon  any  occurrence  of  that  sort,  that  I  could  not  afford  to  take  the 
certificate.  And  that,  therefore,  as  there  had  been  some  reports — the  truth  of  which, 
I  repeated,  I  did  not  pretend  to  vouch  for,  and  there  might  be  soiuething  or  there 
might  be  nothing  in  them  for  all  I  knew — I  said  to  them  and  told  them  I  wanted 
them  to  understand  I  meant  that  in  a  different  spirit  from  ihelaughter  they  had  just 
been  engaged  in — that  I  meant  it  serious,  and  under  those  circumstances  did  I  want 
any  such  thing  to  occur.  That  was  the  substance  of  my  remark  and  almost  the 
exact  words. 

Mr.  Lacey.  Did  you  think  Mr.  Armstrong  and  the  party  looked  upon  the  ballot-box 
steal  as  a  matter  of  no  importance  ? 

A.  By  no  means. 

Q.  They  were  treating  the  knocking  orthe  ballot-box  over  and  the  lights  over  as  a 
joke? — A.  Ifc  was  Bob  Pate  who  was  speaking  and  telling  about  it. 

Q.  I  understood  Armstrong  was  laughing  about  it  to  Pate? — A.  Oh,  no;  Pate  was 
telling  it  and  th*y  was  all  perhaps  laughing.  He  was  not  telling  it  as  serious:  he 
was  telling  it  as  horse-play.     I  never  heard  it  spoken  of  afterwards. 

ISo  doubt  some  of  these  men  would  have  been  deterred  from  taking 
the  first  step  in  their  crimes  if  they  had  realized  that  murder  would  be 
the  end,  but  they  crossed  their  Eubicon.  Breckinridge  got  the  seat  in 
Congress,  and  one  crime  followed  in  the  footsteps  of  the  other.  The 
least  guilty  of  the  criminals  dare  not  expose  the  more  guilty  lest  the 
fate  of  Clayton  should  overtake  them,  and  Taylor,  one  of  the  parties 
who  went  to  Plummerville  for  the  ballot-box,  having  turned  States 
evidence,  is  a  fugitive  from  his  State.  In  fact,  the  only  person  who 
seems  to  have  been  punished  by  the  local  authorities  is  Wahl,  the  Fed- 
<iral  supervisor. 


CLAYTON   VS.    BRECKINRIDGE.  689 

The  murderers  of  Benjamin  must  be  well  known,  for  a  large  number 
of  pepsoDS  were  present  but  they  are  not  indicted,  no  indictments  have 
been  found  under  the  State  election  laws  for  these  crimes,  the  murderer 
of  Smith  is  discharged  without  a  trial ;  the  killing  of  Bentley  is  not  in- 
vestigated, and  the  only  man  whose  crime  has  received  full  attention  at 
the  hands  of  the  local  authorities  is  Wahl,  who  was  indicted  for  playing 
the  game  of  cards  at  the  time  that  he  was  shot.  Where  public  officers  re- 
ceive their  offices  as  the  result  of  criminal  orfraudulent  methods  of  elec- 
tions, it  is  not  to  be  expected  that  they  will  render  active  service  in  pun- 
ishing men  who  have  committed  like  offenses  in  other  elections.  But  the 
great  misfortune  is  that  the  worthy  and  honorable  people  of  all  parties  in 
Conway  County  must  bear  the  stigma  that  such  actions,  by  a  few  vio- 
lent and  wicked  men,  cast  over  the  whole  community. 

A  striking  illustration  of  the  cowed  and  timid  feeling  of  good  and 
worthy  people  was  shown  at  Plummerville  on  the  day  after  the  assas- 
sination of  Clayton.  We  can  not  believe  that  the  people  of  that  village 
all  united  in  sympathizing  with  the  assassins,  but  yet  it  appears  that 
they  shunned  Clayton's  friends  who  went  to  Plummerville  after  the 
dead  body,  and  when  a  few  faithful  and  sympathizing  negroes  carried 
the  coflQn  to  the  cars  there  was  no  one  of  the  town  to  turnout  and  mani- 
fest his  sympathy  for  the  victim,  or  his  abhorrence  of  the  crime. 

EFFECT  OF  THE  TRIALS  IN  THE  FEDERAL  COURT. 

Contestee  claims  in  his  application  for  further  time,  and  also  upon 
the  floor  of  the  House,  and  more  surprising  still,  his  counsel.  General  Gar- 
land, also  claims  that  the  acquittal  of  the  judges  and  others  charged 
with  frauds  in  this  election  is  a  fact  binding  upon  this  House  and  the 
committee;  that  such  result  in  a  criminal  case  before  a  jury  is  prac- 
tically an  adjudication  that  there  was  no  such  fraud,  and  that  such  ad- 
judication should  be  so  accepted  bj'  Congress.  It  is  a  common  saying 
in  criminal  proceedings  that  it  is  better  that  ninety-nine  guilty  men 
should  escape  than  that  one  innocent  man  should  be  convicted. 

All  of  the  Woodruff  County  officials  who  were  indicted  were  convicted. 
In  fact,  all  the  persons  who  were  indicted  were  convicted,  except  the 
persons  indicted  for  the  crime  against  Wahl,  and  those  for  the  stealing 
of  the  Plummerville  box.  Two  persons  were  indicted  and  convicted  on 
one  trial,  and  acquitted  on  a  new  trial.  This  only  shows  that  the  evi- 
dence in  the  cases  of  conviction  satisfied  the  minds  of  the  jurymen  to 
the  exclusion  of  every  reasonable  doubt.  Upon  the  new  trial  when 
there  was  an  acquittal,  no  one  can  say  whether  it  was  a  difference  in 
the  evidence  or  a  difference  in  the  character  of  the  jury.  It  is  suffi- 
cient for  us  to  determine  this  proceeding  upon  the  evidence  introduced 
before  us,  without  speculating  upon  the  causes  that  might  have  led  an 
Arkansas  jury  to  acquit  or  convict. 

The  distinction  between  the  rules  governing  juries  in  criminal  cases 
and  those  prevailing  in  civil  proceedings  is  well  known,  and  we  can  not 
but  express  surprise  at  the  persistence  with  which  the  contestee  and 
his  counsel  cling  to  this  theory  that  the  verdict  of  the  Arkansas  juries 
upon  the  indictments  for  violating  the  election  law  should  be  treated 
as  an  adjudication  that  contestee  is  entitled  to  his  seat.  It  might  as 
properly  be  contended  in  an  action  of  replevin,  brought  by  the  owner 
of  a  stolen  horse  against  a  party  claiming  title  through  the  thief,  that 
the  thief  had  been  able  to  prove  an  alibi  on  a  criminal  trial,  and  that 
therefore  this  should  be  regarded  as  an  adjudication  divesting  the  true 
owner  of  his  title,  although  the  owner  was  not  a  party  to  the  criminal 
H.  Mis.  137 44 


690  CLAYTON   VS.   BRECKINRIDGE. 

proceeding,  and  had  no  right  to  cross-examine  witnesses  or  produce 
testimony  in  his  own  behalf,  nor  to  appeal  from  an  adverse  decision. 

Such  a  legal  proposition  could  only  excite  attention  by  its  entire  nov- 
elty in  a  court  of  justice,  where  rights  of  property  were  involved.  But 
when  it  is  seriously  contended  that  a  seat  in  Congress  obtained  by  fraud 
and  ballot-box  stealing,  can  not  be  contested  unless  the  Government 
authorities  have  been  able  to  convict  the  parties  charged  uj)on  indict- 
meot,  we  can  only  express  our  surprise  at  the  persistence  with  which 
contestee  insists  upon  so  evident  an  error.  The  rule  contended  for  in 
bthalf  of  contestee  does  not  apply  even  in  small  matters,  involving 
only  the  rights  of  property,  and  to  allow  the  control  of  the  legislative 
branch  of  tht*  Government  to  be  thus  decided  would  be  monstrous. 
The  Constitution,  in  express  terms,  declares  that  Congress  shall  judge 
of  the  qualifications  and  election  of  its  members;  and  the  right  to  ex- 
clude from  its  body  men  whose  title  is  procured  by  crime  does  not  de- 
pend upon  the  ability  of  the  Department  of  Justice  to  capture  and 
punish  the  criminals. 
,  The  receiver  of  stolen  goods,  even  though  innocent  of  all  guilty 
knowledge,  can  not  claim  title  based  upon  the  failure  to  catch  or  punish 
the  thieves.  Only  the  seriousness  with  which  it  is  urged  justifies  any 
extended  notice  of  so  evident  an  error. 

The  converse  of  the  contestee's  proposition,  if  he  is  right,  must  also 
be  true.  If  so,  the  conviction  of  Dansby  would  conclusively  invalidate 
the  Kingsland  returns,  and  the  conviction  of  the  various  judges  who 
did  not  escape  would  be  conclusive  against  Mr.  Breckinridge,  although 
he  was  not  a  party  to  the  proceedings.  Let  us  analyze  for  a  moment 
this  proposition,  upon  which  Mr.  Breckinridge  seems  to  have  rested 
his  case. 

Reed,  Lucas,  and  Blakeley,  were  indicted  for  interfering  with  elec- 
tion officers.  Their  acquittal  does  not  show  that  the  ballot-box  was 
not  stolen. 

Hervey  was  indicted  for  interfering  with  the  election  officers,  and  con- 
victed. This  surely  does  not  defeat  Major  Breckinridge's  right  to  his 
seat.  White,  McCullough,  Watson,  Dunham,  and  Palmer  were  indicted 
for  conspiracy  to  murder  the  Federal  witness,  Wahl.  They  were  ac- 
quitted ;  but  Wahl  was  nevertheless  shot.  How  does  this  acquittal  ad- 
judicate that  the  Plummerville  box  was  not  stolen  ? 

Roddy  was  convicted  of  ejecting  the  Federal  supervisors  from  the 
room  at  Augusta.     Is  this  an  adjudication  that  Clayton  was  elected? 

Jones,  Mann,  and  Smith  were  indicted  for  violating  the  election  law 
at  Augusta.    They  were  all  convicted. 

Reed,  Ward,  Beutley,  W.  P.  Wells,  Woods,  Heard,  and  Thad  R.  Wells 
were  indicted  for  stealing  the  Plummerville  ballot-box,  and  were  all  ac- 
quitted. But  it  is  undisputed  that  the  box  was  in  fact  stolen  by  some- 
body. It  by  no  means  follows  that  because  the  jury  acquitted  these 
men  therefore  the  ballots  in  the  box  should  not  be  counted  upon  proper 
proof.  In  fact.  Major  Breckinridge  in  his  answer  conceded  that  the 
vote  of  this  precinct  should  be  ascertained  and  counted. 

Ferguson  ejected  the  supervisor  at  Augusta,  and  was  indicted  and 
convicted.    Is  this  an  adjudication  that  Breckinridge  was  not  elected? 

Hopkins,  Davenport,  and  Hickerson  violated  the  election  laws  at 
Augusta  Township,  Woodruff  County.    They  were  convicted. 

Martin,  Hignight,  and  Anthony  were  indicted  for  stuffing  the  White 
River  ballot-box  and  the  jury  disagreed.  Afterwards  they>were  con- 
victed on  one  count  of  the  indictment,  for  separating  and  not  making 
return  and  proclaiming  the  result.    They  were  acquitted  of  stuflSng 


CLAYTON   VS.    BRECKINRIDGE.  691 

the  box.  But  some  one  stuffed  the  box.  These  men  violated  the  elec- 
tion law,  and  were  convicted.  The  jury  evidently  gave  them  the  bene- 
fit of  the  doubt  as  to  who  it  was  that  took  out  Clayton's  tickets  and  put 
in  Breckinridge's. 

We  have  given  the  list  of  cases  so  confidently  relied  on  as  an  adjudi- 
cation, and  it  appears  that  most  of  these  indictments  in  the  United 
States  courts  resulted  in  convictions. 

THE  VALUE  OF  IMPEACHED  RETURNS, 

Conteatee  complains  that  the  committee  may  refuse  to  accept  the 
impeached  returns  as  of  any  validity,  and  thus  work  a  hardship  upon 
him. 

Tf  the  returns  have  been  falsified  by  the  election  officers  it  is  a  well- 
settled  rule  of  law  that  they  cease  to  have  any  prima  facie  effect,  and 
each  party  can  only  be  credited  with  such  votes  at  the  box  in  question 
as  he  may  show  by  other  evidence.  This  rule  is  one  of  long  standing, 
and  one  of  which  contestee,  as  an  old  member  of  Congress,  must  have 
had  notice.  It  works  no  hardship  upon  contestee  which  does  not  fall 
as  heavily  on  the  contestant.  The  contestant  is  required  in  the  first  in- 
stance to  show  the  fraud  in  the  return,  and  then  must  follow  that  up  by 
proving  his  votcj  or,  in  some  instances,  the  proof  of  the  fraud  is  con- 
nected with  the  proof  of  his  vote. 

In  the  present  case  the  fraud  is  in  a  large  degree  shown  by  proving 
that  votes  cast  for  Clayton  were  substituted  by  ballots  for  Breckinridge, 
and  in  proving  the  fraud  the  votes  for  contestant  are  proved  at  the  same 
time.  Contestant  is  required  to  go  outside  of  the  returns  to  prove  up 
his  vote,  because  the  judgee  of  the  election  have  falsified  the  returns. 
It  is  no  more  a  hardship  upon  the  contestee  to  prove  up  his  vote  by  out- 
side evidence  than  it  is  upon  the  contestant.  If  contestee's  partisans 
had  perpetrated  no  fraud,  the  returns  would  be  accepted  as  true  on  both 
sides.  His  friends  having  falsified  the  returns  and  substituted  his  bal- 
lots for  those  of  his  op[)onent,  there  is  no  return  at  all  of  any  legal  effect. 
He  might  as  well  complain  of  the  hardship  of  being  compelled  to  prove 
up  his  vote  at  PlummerviUe,  where  his  adherents  stole  the  ballot-box 
before  the  vote  was  counted.  No  doubt  contestee  received  some  votes 
at  the  boxes  where  the  returns  were  falsified,  which  votes  he  wholly 
failed  and  neglected  to  prove  whilst  he  had  the  opportunity  in  Arkansas. 

If  the  holder  of  a  promissory  note  alters  the  note  and  raises  the 
amount  from  $1,000  to  $2,000,  he  is  met  in  court  with  the  rule  of  law 
which  prevents  him  from  using  the  fraudulent  instrument  in  evidence. 
It  is  not  even  good  proof  as  to  the  $1,000.  The  same  principle  is  ap- 
plied to  fraudulent  election  returns.  Courts  can  nottake  the  fraudulent 
statements  of  the  election  officers  and  analyze  them,  and  select  the  true 
from  the  false.  The  whole  stream  is  sullied  by  the  impurity,  and  all 
that  can  be  done  is  to  reject  the  returns  altogether  and  seek  other 
sources  of  evidence. 

ESTOPPEL  BY  SWEARING  IN  OP  BRECKINRIDGE. 

Upon  the  hearing  before  the  full  committee  the  contestee  presented 
a  brief  from  ex-Attorney-General  Garland.  He  claims  that  by  reason 
of  the  swearing  in  of  Major  Breckinridge  at  the  organization  of  the 
House  some  sort  of  an  estoppel  arises  by  which  no  contest  can  be 
afterwards  carried  on.    Such  is  not  the  rule  as  to  living  contestants. 


692  CLAYTON   VS.    BRECKINRIDGE. 

They  or  their  friends  are  neither  required  nor  permitted  to  object  to  the 
swearing  in  of  a  member  who  holds  the  formal  certificate. 

No  estoppel  will  arise  against  the  dead.  Clayton  could  not  object  to 
Breckinridge  taking  the  disputed  seat,  ISo  one  else  had  a  right  to  ap- 
pear for  him.  Other  members  present  at  the  time  had  no  apparent  title 
higher  than  that  of  Major  Breckinridge.  The  House  was  iu  the  process 
of  organization,  and  the  members  were  sworn  iu  by  groups.  There  were 
eighteen  cases  of  contest.  If  it  "Was  proper  to  exclude  Major  Breckin- 
ridge because  of  tlie  contest,  the  other  seventeen  contestees  would,  in 
like  manner,  have  been  subject  to  Exclusion.  Notwithstanding  the  high 
standing  of  the  counsel  who  makes  this  singular  claim,  we  can  not  but 
feel  that  a  mere  statement  of  the  proposition  carries  with  it  its  own  ref- 
utation. 

APPLICATION  OF   CONTESTER;FOR  FUR'IHER  TIME. 

The  subcommittee  examined  at  Little  Kock  about  twelve  hundred 
witnesses,  and  there  closed  the  case  so  far  as  the  evidence  in  that  re- 
gion is  concerned,  but  with  the  understanding  that  the  parties  might 
take  some  special  testimony  at  Washington.  The  day  before  the  com- 
mittee left  Washington  for  Arkansas  they  were  notified  that  Mr.  Eowell, 
and  some  other  members  of  Congress,  would  be  examined  bj^  Mr.  Breck- 
inridge, and  it  was  anticipated  that  they  would  be  called  when  the  sub- 
committee returned.  The  contestee,  after  returning  from  Little  JRock, 
demanded  to  reopen  the  case  and  take  the  evidence  of  Governor  Clay- 
ton and  Dr.  Taylor,  of  Arkansas,  and  also  of  the  voters  in  several  pre- 
cincts. To  have  granted  this  request  fully  would  have  involved  the 
return  of  the  subcommittee  to  Little  Rock,  which  they  did  not  think 
was  proper  to  do  under  the  circumstances. 

After  the  case  in  Arkansas  had  been  closed,  and  the  subcommittee 
had  returned  to  Washington,  contestee  then  asked  to  go  on  and  prove 
up  his  votes,  in  the  following  language : 

He  asks,  therefore,  to  prove  up  his  vote  at  these  precincts,  provided  it  is  contem- 
plated by  the  committee  to  refuse  the  reports  of  the  officials  and  the  findings  of  the 
United  States  court,  which  tried  and  acquitted  these  ofiQcials  upon  the  charge  that 
they  had  tampered  with  the  ballots,  which  court  had  the  ballots  and  poll-books,  and 
all  other  evidence  before  it.     (Rec,  p.  379.) 

Mr.  Breckinridge  had  expressed  a  desire  to  take  some  testimony  at 
Washington,  and  it  was  announced  that  the  evidence  in  Arkansas  was 
closed,  but  that  the  subcommittee  would  hear  some  further  testimony 
in  Washington.  The  subcommittee  declined  to  reopen  the  case  as  to 
witnesses  in  Arkansas.  But  Dr.  Taylor  and  Governor  Clayton  hap- 
pened unexpectedly  to  appear  in  Washington,  and  the  subcommittee 
informed  contestee  that  they  would  hear  these  witnesses  as  tiieir  ex- 
amination would  not  involve  delay  or  a  return  to  Little  Rock.  After 
the  leave  was  granted  contestee  declined  to  take  the  testimony  of  these 
witnesses.  Dr.  Taylor's  evidence  was  assumed  to  be  very  important, 
but  when  he  happened  to  appear  in  the  city,  contestee  no  longer  de- 
sired to  take  it;  and  so  also  with  that  of  Governor  Clayton. 

He  also  asked  to  take  further  testimony  in  regard  to  what  has  been 
referred  to  as  the  Hooper  theory  of  the  murder.  But  iu  the  light  of  the 
investigation  of  this  theory  at  Little  Rock,  and  in  the  absence  of  any 
new  discovery,  or  claim  of  anything  new  on  the  subject,  it  did  not  seem 
reasonable  to  send  to  California  for  other  witnesses  upon  that  question. 
Contestee  requested  it  in  his  application,  but  did  not  show  any  informa- 


CLAYTON   VS.    BRECKINRIDGE.  693 

tion  to  base  any  belief  that  any  witnesses  in  California  would  testify 
that  Hooper  was  not  at  his  home  at  the  time  of  the  murder.  There 
were  at  least  two  of  the  murderers,  as  the  tracks  showed,  and  the  theory 
that  Thomas  Hooper  fired  the  shot  at  a  man  whom  he  did  not  know, 
and  against  whom  he  had  no  complaint  in  connection  with  some  one 
else,  whose  name  and  purpose  were  unknown,  seemed  very  unreason- 
able. Governor  Eagle,  who  had  attached  much  importance  to  the 
Hooper  clue,  after  full  investigation  gave  it  as  his  opinion  to  the  sub- 
committee that  it  was  unfounded.    We  quote  his  language : 

As  to  the  other  matter  of  offeriug  a  reward  for  the  ballot-box  thieves,  I  want  to  say, 
as  I  said  then,  I  say  now,  that  I  believe,  I  believed  then  and  I  believe  now,  that  the 
men  who  stole  the  ballot-box  were  implicated  in  the  murder.  I  will  not  state  that 
it  was  dcine  with  a  view  of  putting  Clayton  out  of  the  House  of  Representatives,  or 
with  a  view  of  keeping  him  out  and  putting  Breckinridge  in;  but  because  they  were 
conscious,  probably,  of  having  committed  a  crime  against  the  law  and  that  there  was 
an  investigation  going  on  there,  and  they  were  ieeling  that  probably  they  would  be 
overtaken  in  the  crime  and  be  punished. 

If  Mr.  Breckinridge  had  any  new  information  which  would  have  jus- 
tified the  subcommittee  in  returning  to  the  investigation  of  this  clue 
he  should  have  made  it  known  to  the  subcommittee  in  his  application. 

As  to  Major  Breckinridge's  claim  that  he  has  not  had  ample  time  in 
Arkansas,  we  refer  to  the  record  of  the  stenographer  as  to  the  ad- 
journment. By  some  oversight  this  was  not  inserted  in  the  transcript 
and  printed,  and  we  here  insert  it : 

At  the  close  of  the  examination  of  Governor  James  P.  Eagle,  on  recall,  on  the 
night  of  May  8,  lb90,  the  following  proceedings  were  had,  to  wit : 

Mr.  Lacey.  Now,  gentlemen,  are  there  any  other  witnesses  to  be  exaiaiued? 

Mr.  McClure.  I  have  none. 

Mr.  McCain.  We  had  thought  of  offering  some  further  evidence,  and  bringing  some 
other  witnesses,  but  we  have  concluded  to  accommoaate  the  committee  as  you  are 
anxious  to  get  away  and  get  back  to  Washington,  and  we  will  say  we  are  through. 

Mr.  Lacey.  We  want  to  take  all  the  evidence  you  have  to  offer,  and  are  willing  to 
stay  until  you  are  through,  but  if  you  have  nothing  further  to  offer  we  will  adjourn 
sine  die. 

The  committee  adjourned  sine  die. 

It  is  well  to  observe,before  leaving  this  branch  of  the  matter,  in  regard 
to  the  voters  in  Arkansas  and  the  great  desire  of  contestee,  as  shown 
in  his  application,  to  take  their  evidence,  that  he  waited  until  he  got 
1,600  miles  away  from  them  before  manifesting  any  such  disposition. 

DANSBY'S  CASE. 

In  Cleveland  County  one  Dansby  appeared  at  the  polls,  and,  bringing 
two  shot-guns,  announced  his  purpose  of  taking  an  active  interest  in 
the  proceedings.  He  was  under  the  influence  of  liquor.  He  threatened 
Monk  Williams,  the  Republican  colored  supervisor,  and  Williams,  under 
Dansby's  threat,  abandoned  the  polls  and  did  not  supervise  the  count 
as  provided  by  law.  , 

Dansby  is  a  married  man,  and  his  age  is  given  variously  by  the  wit- 
nesses, but  he  appears  to  be  from  thirty  to  thirty-five  years  old.  He  is 
the  nephew  of  the  chairman  of  the  Democratic  Congressional  district 
committee.  Mr.  Dansby  is  a  strong  Democrat,  and  was  a  partisan  of 
contestee.  Efis  high  connections,  instead  of  being  treated  as  an  aggra- 
vation of  his  gross  violation  of  both  State  and  Federal  law,  is  rather 
urged  as  an  excuse  for  shielding  him  from  i)unishment,  and  his  fine  of 
$500,  inflicted  by  the  United  States  court,  was  paid  by  the  chairman  of 
the  Democratic  district  committee,  assisted  by  Mr.  Breckinridge.    Mr. ' 


694  CLAYTON  VS.  BRECKlNRlDGE. 

Breckinridge  makes  the  following  statement  in  regard  to  the  payment 
of  this  fine: 

Mr.  Dansby's  puuishment  was  quite  severe,  $500  and  costs,  for  an  ofl'euse  that  usually 
would  not  have  been  punished  with  10  per  cent,  of  that  amount ;  but  no  particular  com- 
plaint was  made  of  it.  The  fact  that  Hon.  J.  M.  Hudson,  chairman  of  the  district 
Democratic  committee,  helped  Mr.  Dansby  pay  his  fine,  is  mentioned  as  very  pignifi- 
caut.  It  might  have  been  added  that  I  helped  Hudson  help  Dansby.  Someliody  had 
to  help  Dansby  pay  his  fine  or  he  had  to  go  to  jail.  Mr.  Hudson  is  his  uncle,  and 
Dansby  is  a  young  man  and  an  orphan. 

A  man  of  thirty  or  thirty-five  years  of  age  got  drunk,  took  guns  to  the 
polls,  and  drove  away  a  Federal  supervisor  from  the  discharge  of  his 
duty,  and  made  the  most  outrageous  threats  against  Eepublican  voters. 
He  was  fined  $500,  and  the  contestee  insists  that  10  per  cent,  of  that  sum 
was  the  "  usual "  amount,  and  concedes  that  the  fine  was  paid  by  his  dis- 
trict chairman  and  by  himself.  But  contestee  says  that  Dansby  was  an 
"orphan."  He  was  a  tolerably  mature  "orphan."  Contestee  in  ren- 
dering pecuniary  aid  to  so  old  an  orphan  as  Dansby  has  subjected  him- 
self to  the  natural  criticism  of  sympathizing  with  the  act  rather  than 
with  the  youth  and  inexperience  of  the  actor.  If  Dansby's  crime  had 
been  against  some  other  law  than  that  protecting  elections,  we  might 
well  surmise  that  the  party  committee  and  nominee  for  Congress  bene- 
fited by  the  present  crime  would  have  hardly  felt  called  upon  to  pay 
his  fine  for  him. 

That  the  nominee  of  a  great  political  party  should  accept  a  certificate 
of  election  to  a  seat  to  which  he  was  clearly  not  elected,  when  the  cer- 
tificate was  obtained  by  the  well-known  larceny  of  a  ballot-box,  and  at 
the  same  time  openly  aid  in  the  payment  of  a  fine  imposed  upon  an- 
other violator  of  the  election  laws  who  had  driven  an  election  officer 
iiom  his  post,  and  that  su(>h  conduct  should  not  be  met  with  anything 
but  commendation  and  approval  by  his  political  followers,  shows  a  state 
of  disregard  for  the  principles  of  popular  government  which  may  well 
make  us  look  with  apprehension  upon  the  future  of  our  country.  That 
men  may  be  found  lawless  enough  to  commit  these  crimes  is  to  be  de- 
plored, but  when  men  of  high  character  and  standing  complacently 
avail  themselves  of  the  fruits  of  such  crime  and  the  control  of  the 
National  House  of  Representatives  is  made  to  turn  upon  such  methods, 
it  no  longer  remains  a  mere  matter  of  local  concern,  but  arises  to  the 
magnitude  of  a  national  calamity. 

FREEMAN  TOWNSHIP. 

In  Freeman  Township,  Woodruff  County,  no  election  was  held.  This 
failure  was  occasioned  by  the  act  of  the  Democratic  sheriff  in  furnish- 
ing the  poll-books  locked  up  in  the  ballot-box  and  with  no  key.  The 
Eepublican  supervisor  was  informed  that  if  he  would  break  open  the 
box  they  would  hold  the  election,  but  not  otherwise,  as  the  act,  it  was 
suggested,  involved  a  penitentiary  offense.  Though  anxious  to  hold 
the  election,  the  supervisor  did  not  deem  it  prudent  to  incur  this  risk, 
and  the  election  was  not  held.  The  precinct  had  been  a  very  close  one, 
according  to  the  returns  at  the  State  election,  but  the  Republicans 
claimed  that  with  the  aid  of  proper  supervision,  so  as  to  insure  a  fair 
count,  there  would  be  a  good  majority  for  their  ticket. 

In  fact  but  few  Democrats  of  this  precinct  appeared  at  the  polls, 
whether  because  they  knew  there  would  be  no  election  or  not  does  not 
appear,  and  the  proof  did  not  show  how  many  Democrats  were  pre- 
vented from  voting  at  this  box  by  the  failure  of  the  election  officers  to 


CLAYTON   VS.    BRECKINRIDGE.  695 

V 

hold  the  election.  Eighty-three  persons  made  proper  effort  to  vote  for 
the  contestant  and  were  prevented  by  the  failure  to  open  the  polls.  We 
attach  a  list  with  the  other  lists  in  the  appendix.  This  state  of  facts 
raises  an  interesting  question  upon  the  law  of  elections,  to  which  we 
have  given  some  attention,  and  which,  under  the  peculiar  facts  of  this 
case,  appears  not  yet  to  have  been  heretofore  directly  decided.  It  be- 
comes, however,  an  important  fact  as  bearing  upon  the  issue  of  a  con- 
certed plan  to  prevent  a  fair  election.  If  this  vote  claimed  be  counted 
it  would  only  increase  the  majority  of  contestant,  and  its  omission  from 
the  count  would  not  change  the  result,  and  therefore  we  do  not  deem 
it  necessary  to  pass  upon  the  question. 

Notwithstanding  the  murder  of  the  contestant,  the  cont^stee  ap- 
peared and  took  the  contested  seat.  The  present  case  has  attracted 
national  attention,  not  because  it  stands  alone,  as  a  startling  and  strik- 
ing incident  of  dangers  ahead  to  our  form  of  government,  but  because 
it  appears  to  be  one  of  the  worst  of  a  very  bad  kind.  Other  ballot- 
boxes  have  been  stolen  in  other  districts,  other  ballot-boxes  have  been 
stuffed,  other  returns  have  been  falsified,  other  voters  have  been  intim- 
idated, other  political  murders  have  been  committed,  but  now  for  the 
first  time  a  member  of  Congress  elected  by  a..fair  and  full  majority  of 
his  people  has  been  foully  murdered  while  preparing  his  case  for  pre- 
sentation to  this  House,  and  a  new  element  of  settlement  of  political 
contests  is  introduced. 

In  the  old  days  of  the  code  of  honor,  political  antagonists  often  met 
face  to  face  and  eye  to  eye,  and  sought  their  adversary's  life.  This 
method  of  settling  political  differences  has  become  obsolete,  and  we  fre- 
quently congratulate  ourselves  upon  the  improved  moral  tone  of  our 
day  and  generation.  But,  never  before  has  a  contest  for  a  seat  in  Con- 
gress been  terminated  by  the  bullet  of  an  assassin.  If  such  methods 
are  submitted  to  in  silence,  the  party  benefited  by  the  crime  of  his  par- 
tisans quietly  and  without  dispute  retaining  the  benefits  of  the  death  of 
his  competitor,  we  would  find  that  a  new  element  would  be  introduced 
into  our  form  of  government. 

Complaint  agaPInst  those  who  object  to  fraud  and  murder  in  elections, 
as  constituting  an  assault  upon  the  "  people  "  of  Arkansas,  is  the  most 
cruel  form  of  attack  upon  the  people  of  that  State.  This  indirect 
recognition  of  the  criminals  as  the  "people"  and  the  constant  and  re- 
peated complaint  that  reference  to  such  methods  is  a  libel  upon  the 
"  people  "  of  any  State,  coming  as  it  does  from  persons  high  in  influence 
and  authority,  is  calculated  to  convey  the  impression  that  the  people 
are  in  general  sympathy  with  such  methods,  and  we  protest  against  it, 
and  believe  that  such  defense  of  the  people  of  Arkansas  is  the  gross- 
est of  libels  against  them. 


696  CLAYTON  VS.  BRECKINRIDGE. 

THE  RESULTS. 

The  following  is  the  vote  as  returned  to  the  governor : 


Coanties. 

Breckinridge. 

Clayton. 

636 

508 

561 

1,733 

1,377 

1,337 

1,995 

1,327 

1,480 

823 

811 

912 

1,953 

707 

766 

1,031 

366 

93 

Van  Baren  ........ 

::::::::,'::::.■.:' 

278 

890 

1,337 

Faulkner - ...  .................. ...... 

1,119 

White 

705 

■Woodmflf. ^ 

1,107 
1,106 

668 

Monroe . ............... 

1,161 

1, 091 

Jefferson . .. 

5,377 

208 

1,182 
403 

Cleveland .... r  -   -                       -          --  .     - -. 

Total 

17,857 
17,  Oil 

17,  on 

treckinridge ................ . . .. 

Minority  for  I 

846 

Mr.  Breckinridge,  by  the  suppression  of  the  Plummerville  vote,  was 
returned  by  a  majority  of  846. 

Under  the  well-settled  law,  as  decided  in  this  House  repeatedly,  when 
a  return  is  found  to  be  tainted  with  fraud  it  ceases  to  have  any  binding 
force  whatever,  and  we  must  look  to  other  evidence  for  the  vote.  A 
number  of  precincts  were  attacked  in  the  evidence,  and  in  all  of  them 
material  changes  were  shown  to  have  been  fraudulently  made  in  the  in- 
terest of  the  contestee.  Ballots  were  suppressed  or  substituted,  and 
if  the  same  percentage  of  fraud  was  committed  throughout  the  district, 
Mr.  Clayton  might  have  had  as  large  a  majority  as  Norwood  had  over 
Eagle  in  the  same  counties  in  September.  To  have  gone  through  the 
other  precincts  in  the  same  way  would  have  involve(>the  examination 
of  several  thousand  more  witnesses,  and  a  few  precincts  were  singled 
out  by  the  parties  representing  the  contestant,  and  the  attack  confined 
to  them. 

WHITE  RIVEE  TOWNSHIP,  WOODRUFF  COUNTY. 


The  return  shows : 

Breckinridge 210 

Clayton 44 

Under  the  laws  of  Arkansas,  the  judges  are  required  to  mark  a  num- 
ber on  the  outside  of  the  ballot,  before  putting  it  in  the  box,  and  such 
number  corresponds  with  the  number  opposite  the  voter's  name  on  the 
poll-list.  In  this  precinct  62  persons  who  swear  they  voted  for  Clayton, 
deny  that  they  cast  the  tickets  numbered  as  having  been  cast  by  them. 
The  original  tickets  were  presented  to  them  before  the  committee,  and 
are  shown  to  be  the  opposite  of  what  they  voted.  These  62  tickets 
were  evidently  changed  by  or  with  the  connivance  of  the  Democratic 
judges  of  the  election,  and  when  corrected  make  a  difference  of  62  off 
of  Breckinridge's  vote,  and  62  to  be  added  to  that  of  Clayton. 

These  ballots  had  manifestly  been  substituted  after  they  were  de- 
posited, and  this  could  not  have  been  done  if  the  judges  had  not  either 
permitted  it  or  committed  the  act  themselves.    This  change  of  124  in- 


CLAYTON  VS.   BRECKINRIDGE.  •  697 

validates  the  return.    A  fraudulent  return  of  this  character  can  have 
no  effect,  and  as  a  matter  of  law  we  must  deduct  from — 

Breckinridge's  reported  majority  of 846 

The  votes  so  fraudulently  returned 210 

Leaving  a  majority  of 636 

In  counting  Clayton's  vote,  44  votes  were  credited  to  him  in  making 
Breckinridge's  original  majority.  The  proof  shows  that  he  got  62 
votes  where  the  tickets  were  changed,  39  votes  where  his  tickets  were 
not  changed,  as  shown  by  the  voters  themselves,  and  5  others  where 
the  proof  is  that  the  voters  were  furnished  with  and  cast  Clayton 
tickets,  and  that  the  voters  were  Republicans.  Total  vote  proved  for 
Clayton  106.  He  has  already  been  credited  with  44,  so  he  should  now 
be  credited  with  the  balance,  62.  There  were  also  two  names  of  voters 
not  on  the  book,  who  voted  for  Clayton.  We  will  insert  the  names  of 
all  these  voters  in  an  appendix,  which  we  think  will  be  more  conven- 
ient for  reference  than  to  incorporate  them  here.  Deducting  from 
Breckinridge's  returned  majority  64,  leaves  672. 

COTTON  PLANT  TOWNSHIP,  WOODRUFF  COUNTY. 

In  this  precinct  there  were  returned  for — 

Breckinridge - 186 

Clayton 132 

The  fact  that  the  ballots  were  changed  after  being  cast  is  not  only 
sworn  to  by  the  voters  at  this  precinct,  but,  in  many  instances,  the  bal- 
lots introduced  in  evidence  appears  to  have  been  folded  after  they  were 
numbered.  The  judges  are  required  to  put  the  number  on  the  ballot 
before  depositing  it,  and  the  numbers  in  many  instances  showed  that 
they  must  have  been  written  on  the  ballot  before  folding,  the  crease  of 
folding  running  through  the  number  on  the  back  of  the  ticket.  This 
was  utterly  at  variance  with  the  coutestee's  theory  that  Eepublican  col- 
ored voters  were  secretly  voting  the  Democratic  ticket.  If  these  men 
voted  for  Breckinridge  at  all  they  voted  an  open  ticket. 

Deduct  the  vote  returned  for  Breckinridge,  the  return  being  set  aside 
for  fraud,  186;  leaving  Breckinridge's  majority  386. 

There  were  returned  for  Clayton  132;  48  voters  swear  they  voted  for 
Clayton,  but  are  returned  as  voting  for  Breckinridge;  this  fraud  invali- 
dates the  return.  These  48  votes  should  be  counted  for  Clayton  ;  also 
104  tickets  in  the  returns  proved  to  have  been  cast  as  returned,  the 
voters  being  called  as  witnesses;  also  23  voters  whose  names  are  en- 
tered in  the  poll-books,  and  who  are  shown  to  have  voted  for  Clayton ; 
also  30  voters  whose  names  were  not  on  the  poll-books;  total,  205.  Of 
this  205,  132  are  already  counted  for  Clayton,  leaving  to  be  deducted 
73 ;  leaving  Breckinridge's  majority  313. 

TOWN  OF  AUGUSTA,  WOODRUFF  COUNTY. 

The  returns  show — 

Breckinridge 98 

Clayton 34 

The  evidence  of  the  voters  shows  that  8  ballots  were  changed  from 
Clayton  to  Breckinridge,  and  7  persons  swear  they  voted  for  (Clayton, 
and  are  voters,  and  their  names  are  not  on  the  poll-lists ;  26  persons 
swear  that  they  voted  for  Clayton,  and  are  so  returned ;  10  persons  are 


698  '  CLAYTON   VS.   BRECKINRIDGE. 

shown  by  other  evidence  to  have  voted  for  Clayton,  and  are  so  returned ; 
also  one  ticket  is  shown  to  have  been  voted  for  Clayton,  and  Clayton's 
name  afterwards  erased,  making  a  total  for  Clayton  ot52.  Deduct  the 
returned  vote  for  Breckinridge,  98;  balance  Breckinridge's  majority, 
215.  Clayton  is  already  credited  with  34.  Deduct  the  difference  be- 
tween 34  and  52 — 18.    Balance  Breckinridge's  majority,  197. 

RIVERSIDE,  WOODRUFF  COUNTY. 

Returned  for  Breckinridge 197 

Returned  for  Clayton 59 

It  appears  from  testimony  of  the  voters  that  29  Clayton  tickets  were 
changed  aud  Breckinridge  tickets  substituted,  thus  invalidating  the 
returns. 

Deduct  vote  for  Breckinridge,  197  ;  majority  for  Breckinridge,  0. 
The  29  persons  whose  tickets  were  so  changed  should  be  counted  for 
Clayton  ;  also  32  others  appear  and  testify  that  they  voted  for  Clayton, 
and  their  tickets  so  appear;  also  25  persons  admitted  in  the  record  to 
have  voted  for  Clayton,  whose  tickets  are  so  returned  ;  also  4  persons 
M  ho  voted  for  Clayton,  but  whose  names  do  not  appear  on  the  poll-list; 
also  one  vote  with  no  ticket  preserved  in  the  box;  total  90.  Already 
returned  for  Clayton  59;  balance  to  be  counted  to  him  31;  total  Clay- 
ton's majority,  31. 

Breckinridge  did  not  attempt  to  prove  up  his  vote  at  these  boxes, 
but  incidentally  some  of  them  were  proved  up,  and  the  lists  are  at- 
tached to  the  Appendix. 

Proved  in  Augusta  for  Breckinridge 3 

Proveil  in  Cotton  Plant  for  Breckinridge , 1 

Proved  in  White  River  for  Breckinridge 3 

Total 7 

The  balance  of  Clayton's  majority,  without  taking  into  account  Free- 
man Township,  Woodruff  County,  or  the  Plummerville  vote  in  Conway 
County  is  24. 

HOWARD   TOWNSHIP,   CONWAY  COUNTY. 

Total  vote  for  Clayton 560 

For  Breckinridge 125 

Majority  for  Clayton 435 

Total  majority  for  Clayton  in  the  district 459 

There  are  in  addition  to  this  83  votes  which  were  not  cast  at  Free- 
man Township,  Woodruff  County,  by  reason  of  the  failure  to  open  the 
polls. 

The  above  is  the  computation  upon  the  settled  rules  of  election  law 
in  this  House.  We  will  now  state  the  return  upon  the  most  favorable 
view  that  contestee  could  claim,  under  the  case  of  Jones  vs.  Glidewell, 
Supreme  Court  of  Arkansas,  A.  D.  1890.  If  we  were  to  throw  out  the 
whole  vote  in  the  impeached  precincts,  and  inasmuch  as  Breckiuridge 
has  not  proved  his  vote  there,  to  ignore  the  proof  of  Clayton's  vote,  it 
would  show  the  following  results : 

Breckinridge's  majority 846 

Deduct  Howard.  Township,  Conway  County,  majority  shown 435 

Majority  remaining 411 


CLAYTON   VS.   BRECKINRIDGE. 


699 


Now  deduct  the  vote  returned  for  both  parties  iu  the  disputed  pre- 
cincts : 


Precincta. 

Breckinridge. 

Clayton. 

White  Eiver 

210 
186 
98 
197 

44 

Cotton  Plant         

132 

34 

59 

Total 

091 

269 

By  thus  considering  the  proof  for  the  purpose  of  showing  fraud  alone, 
and  not  for  the  purpose  of  counting  the  votes,  Breckinridge  would  lose 
the  difference  between  691  and  269,  or  422,  which  woukl  leave  Clayton 
elected  by  11  majority  without  taking  into  consideration  Freeman 
Township.  But  this  method,  so  favorable  to  contestee,  is  not  the  rule 
of  this  House,  and  we  only  make  the  computation  iu  this  form  to  show 
that  by  the  most  favorable  method  of  calculation  the  contestee  is  not 
entitled  to  the  seat  which  beholds,  after  the  proof  is  adduced  as  to  the 
Plummerville  box. 

We  recommend  the  adoption  of  the  following  resolutions : 

"  Resolvei,  That  Clifton  R.  Breckinridge  was  not  elected  to  the  seat 
which  he  now  holds  as  Representative  in  Congress  from  the  Second 
Congressional  District  of  the  State  of  Arkansas, 

^^  Eesolved,  That  John  M.Clayton  was  elected  as  Representative  in 
Congress  from  the  Second  Congressional  District  of  the  State  of  Ar- 
kansas, and  because  of  his  death  the  seat  is  declared  vacant." 

The  committee  do  not  feel  called  upon  to  offer  any  resolution  in  re- 
gard to  the  "  methods  of  the  election  "  referred  to.  It  is  a  proper  sub- 
ject for  legislation,  but  has  been  anticipated  iu  the  House  by  the  Fed- 
eral election  law  just  passed. 


APPENDIX. 


CLAYTON    V.    BRECKINRIDGE   CONTEST    FROM    SECOND   ARKANSAS 

DISTRICT. 

LIST  OF  VOTERS  AND  THE  PAGES  OF  THE  RECORD  WHERE  THE 
EVIDENCE  MAY  BE  FOUND. 


WHITE  RIVER  TOWNSHIP,  WOODRUFF  COUNTY. 

Names  of  petaona  appearing  on  the  poll-book  of  said  township  who  are  returned  as  voting 
for  Breckinridge  who  have  testified  they  voted  for  Clayton. 


Page. 

1.  Anthony,  Armstead 17 

2.  Anthony.J.Wi 20 

3.  Anthouy.C.H 21 

4.  Anderson,  Geo 26 

5.  Antbony.J.T 26 

6.  Anderson,  Lewis 29 

7.  Anthony,  Ruben 32 

8.  Bledsoe,Wash IstRec.  93 

9.  Butler.Frank IstEec.  90 

10.  Brown,  Harry 16 

11.  Briscoe, William IstRec.  88 

12.  Boon,Tony 24 

13.  Briscoe,  Ed IstEec.  90 

14.  Campbell, I&om IstRec.  91 

15.  Campbell,  Albert IstRec.  94 

16.  Carry, "Willis IstRec.  90 

17.  Curry.Bnd 27 

18.  Curry.Ike 28 

19.  Eden.Sam IstRec.  88 

20.  Eaton.Jessee 18 

21.  Fiilton.David IstBeo.  90 

22.  FeltoD,  William 23 

23.  Freeman,  Rufna 23 

24.  Greenwood, James IstRec.  87 

25.  Graham,  Armond 25 

26.  Hodgies.Nick 1st  Reo.  90 

27.  Haigb,  Aler IstRec.  95 

28.  Henderson,  J.  XJ 22 

29.  Hughes,  Tom IstRec.  90 

30.  Houston,  Henry IstRec.  96 

31.  Hodge,Nick IstRec.  92 


Page. 

32.  Jone8,C.P 16 

33.  JoneSjJim 21 

34.  JobnsoD.Geo 33 

35.  Montgomorv,  Groo 14 

36.  McDonald,  Josey 14 

37.  Minor,  Jessee 17 

38.  McCov, Allen IstRec.  86 

39.  McCoy,  Ben 86, 1st  Rec.  19 

40.  McCoy,Levey 20 

41.  McDonald,  Lewis 24 

42.  McDonald,  Mans 24 

43.  McCoy.Clint  25 

44.  Magnus,  Frank 28 

45.  Moore,  Henry 31 

46.  Miller.Joe  .". 32 

47.  Murray,  Allen 34 

48.  Nelson.  Alex 31 

49.  Owen.Charles 19 

50.  Prunty.John  30 

51.  Roddy.Lewis IstRec.  89 

52.  Simpson,Ben IstEec.  92 

63,  Simpson.F  IstRec.  95 

54.  Thompson.F IstEec.  94 

55.  Thompson,! IstEec.  86 

56.  Tucker,  Dan 33 

57.  Vaughn,  J.  A IstRec.  90 

58.  AVise.John IstRec.  88 

59.  Ward.J.H 20 

60.  Williams, Joe  IstRec.  90 

61.  Warren,lke  21 

62.  Wright, Alfred IstRec.  96 


1.  Anthony,  Andy  . 

2.  Anthony,  WDlis. 

3.  Anthony,  H.  A  . . 

4.  Anthony,  Paul . 


Page. 

22 

28 

32 

190 


Names  of  persons  appearing  on  the  poll-hook  of  said  township  who  are  returned  as  voting 
for  Clayton  who  appeared  and  testified  they  so  voted,  or  whose  votes  were  shown  hy  other 
evidence. 

Paget 

21.  McCoy,  M.  W 25 

22.  McKenzie,  And 29 

23.  McDonald,  Dan 102 

24.  Pitts,Pompey IstRec.  89 

25.  Pussell,  U  IstRec.  87 

26.  Rozzell,Ed  .87,  IstEec.  39 

27.  Eoss.H IstEec.  S9 

28.  Eunyan,S.C IstRec.  88 

29.  Stewart.Sam 18 

30.  Stewart.Joe 31 

31.  Tripp,  J IstRec.  *  89 

32.  Tripp.I IstEec.  87 

33.  Thompson,A.L 192 

34.  Watson,S  IstEec.  95 

35.  Williams, Oscar IstRec.  96 

36.  Westmoreland,  D 26 

37.  Briscoe,  E  IstRec.  90 

38.  Bri8coe,Wm IstEec.  88 

39.  Watson,  Gas let  Eec.  90 


5.  Anthony.E.  B IstRec.  92 

6.  Bridges,  Louis IstEec.  85 

7.  Butler, H.F IstRec.  94 

8.  Beverly,  G.W 26 

9.  Beal,  S.A 191 

10.  Corloy,  Sherwood IstRec.  86 

11.  Corley.Wm 30 

12.  Couch,  Anthony 191 

13.  Davi8,David 27 

14.  Davis,  Wyatt 32 

15.  Ellis,  W.  "L 191 

16.  Graham,  Sam 40 

17.  Lowe,  Marshal IstRec.  86 

18.  Martin,  J.M IstRec.  89 

19.  Martin,  Sam'l., IstRec.  88 

20.  Martin,  Thomas  22 

700 


CLAYTON    VS.    BRECKINRIDGE. 


701 


Names  of  persona  appearing  on  thepoll-book  of  said  toicnship  tcho  are  returned  as  voting  for 
Clayton  who  were  not  found,  but  who  are  proven  to  beBepublieana  and  to  have  been  fur- 
nished with  a  Clayton  ticket. 


Page.] 

1.  Jelk8,Rich'd 191 

2.  Richards,  Wm 192 

3.  Slocuni  Madom 192 


Page 

4.  Tounf:,.T."W 25 

5.  Ayres,  S.E  192 


Names  of  persons  whose  7iame8  do  not  appear  on  the  poll-book,  but  who  sivear  they  were  at  the 
election  and  voted  for  Clayton. 

Page.  I  Page. 

1.  Danshee, "Wash 15  |  2.  Neal,  Tobe 06,  Istreo.        M 


Total  number  of  names  on  poll-book 257 

Return  shows  Breckinridge 210 

Clayton 44 

Tickets  show  Breckinridge 209 

Clayton 45 


WHITE  RIVER  TOWNSHIP,  WOODRUFF  COUNTY. 

Names  of  persons  shown  to  have  voted  for  Breckinridge. 

Page.  I 

1.  Mclfealy,  George 656  I  3.  Harris,  Rafus 

2.  Hutchinson,  J.  A 657  I 


Page. 
658 


COTTON-PLANT  TOWNSHIP,  WOODRUFF  COUNTY. 

lAst  No.  1. — Names  of  persons  appearing  on  thepoll-book  of  said  township  ivho  are  retwned 
as  voting  for  Breokinndge,  who  have  testified  they  voted  for  Clayton. 


Brown,  Julius 

Campbell,  Henry. 
Childers,  I'eter... 
Carter,  George... 

Coplan<'  C  E 

Chunr  D  

Davis,  John ...... 

Floyd  L — . 

Floyd,  B 

Finle>,Ben 

Folsoni,  Harry.... 

Greer,  Will 

Giles,  Heory  A. .. 
Halland,  Cbas.... 
Hibler,  Austin  ... 


Page. 
68 
62 
61 
60 
63 


94 

78 

66 

90 

92 

67 

59 

64 

Hal),  Theo 100 


Hall,  Sam 
Hardin,  Jeflf.... 
Johnson,  John., 

Johnson,  R 

Johnson,  C  

Jones,  Chailey . 
Kaiser,  John  ... 
Leech,  Dan 


95 
74 
73 
110 
70 
75 
93 
76 


Laimer,  Jacob 

Nixon,  Dunk 

Nowling,  E 

Phillips,  James 

Pearson,  L 

Reynolds,  G- 

Richards,  G- 

Roland,  Ruben 

Razor,  Joe 

Sloan,  Z.L 

Sanders,  M 

Sawyers,  G 

Smith,  Neath   

Sampson,  Sandy 

Turner,  Henry 

Tiggs,  Pleasant 

Thompson,  Mack 

Taylor,  L.S 

Wil80n,D.  H 

Walton, "Wm 

Wilson,  Mack 

Woods,  C 

Walker,  James 

Young,  Jack 


Page. 
83 
81 
74 
«1 
77 
97 
91 
79 
93 
66 
76 
86 
87 
63 
79 
61 
69 
06 
58 
60 
64 
79 
71 
65 


List  No.  2. — Numta  of  persons  appearing  on  the  poll-books  of  said  township  who  are  re- 
turned as  voting  for  Clayton,  who  appeared  and  testified  they  so  voted. 


Anderson,  A 

Ashley,  H 

Brown,  R.H 

Buchanan,  Isaac. 

Blackman,  B 

Bostick,  Esau 

Brunston,  A 

Briggs,  Sam 

Black,  John 

Crutcbmer,  R.  6 . 
Childers,  Joe .... 
Chunn,  R'.x...... 

Chunn,  Mark 

Chunn, F  

Chunn,  Alex 

Chunn,  Jake . ... 
Clark.  Chas 


Page. 
74 
78 
62 
91 
63 
92 
90 


18.  Chunn,  Will 

19.  Drummond,  Pink 

20.  Davis,  J 

21.  Davis,  Bill 

22.  Elmer,  Bob L. 

23.  Hampton,  Geo 

24.  HoUiday.G 

25.  Horton,  B 

26.  Horton,  F 

27.  Harvey,  Denis 

28.  Haskins,  Pink 

29.  Hall,  Sam 

30.  Hancock,  C 

31.  Hunter,  A.  H 

32.  Jenkins,  P 

33.  Johnson,  Aaron 

34.  Jones,  Wash 


Page. 
66 
69 
68 
86 
76 
92 
70 
81 
07 
67 
85 
95 
83 
71 
81 
73 
77 


702 


CLAYTON    VS.    BRECKINRIDGE. 


List  No.  2. — Names  of  persons  appearing  on  the  poll  books  of  said  township  who  are 
returned  as  voting  for  Clayton,  e^c— Coutiuued. 


35.  Johnson,  J 72 

3C.  Jones,  Mat 64 

37.  Jonea,  Sandy 77 

38.  Johnson,  Dave 72 

39.  Jains,  Jasper... 63 

40.  King,  Geo 81 

41    Laird,  Jefif 96 

42.  Lard,  Barney 87 

43.  Lester,  Charley 93 

44.  Leek,  J 83 

45.  Leek,  Will 76 

46  Locke,  Will 65 

47.  Locke,  H 82 

48.  Lapier.Will 77 

49.  Locke.Sam 73 

50.  Locke,  Mat 82 

51.  Lock.Lon 87 

52.  Lard,  Kearney 88 

53.  Madden,  Milton 87 

54.  McGee,Sam 71 

55.  Merritt,Nick 82 

56.  McBaniel,  W" 75 

57.  Mayo,  Lee 90 

58.  Morris,  W.A 101 

59.  McCoy,  Sam 80 

60.  Moiri's,Alex 67 

61.  Monroe,Wynn 70 

62.  McNeelev,  Henry 80 

63.  Nesbitt,  Berry 69 

64.  Nixon,G 80 

65.  Paul,  Aaron 96 

66.  Philip,  Andrew 107 

67.  Perkins,  W 79 

68.  Pier,  W.La 76 

69.  Perkins,  Bob 71 


100. 
101. 
102. 
103. 


Page. 

Kussell,  Joe 75 

Roberts,  Lee 93 

Koland,R 101 

Rocrers,  Ned 62 

Slaughter,  Bob 66 

Settle,  Ben 66 

Shelton,  Sam 77 

SuiiimtTs,  W 91 

Shelton,  Jacob 82 

Slav.  Adolphns 109 

Sutton,  Smith  Ben 107 

Shelton.  Henry  94 

Sledge,  Jos 72 

Shelton,  Frank 105 

Shelton,  Osbom 93 

Trent,  R 92 

Thompson,  Richard 81 

Taylor,  Nehson 72 

Taylor,  Green 72 

Wottd.s,  Remns 70 

Williams,  Henry 75 

Watters,  Bill 87 

Woods.Robt 95 

Williams,  Jas 74 

William.s,  Buck 87 

Woods,  Spence 88 

Wilson,  Geo 76 

Woods,  Jetr 108 

Wood.s,Dick 81 

Walker,  A  107 

Woodsmith,  Haywood 89 

Hollin.s,  W.T 109 

James,  Nill 109 

Sutton,  B.S 107 


List  No.  3. — Names  of  persons  appearing  on  the  poll-hook  of  said  township  who  are  re- 
turned as  voting  for  Clayton,  who  ivere  not  found,  but  are  proven  tobe  Republicans  and  to 
have  been  furnished  with  Clayton  tickets. 


Page. 

1.  Ackal.Jack 108 

2.  Bates,  G.H 108 

3.  Cleminga,R.N 108 

4.  Do8S(n,.r.M 109 

5.  Foatherston,  A.  G 109 

7   Gathing 10!) 

9.  Hollius.  W.P..... 109 

10.  Henry,  Wm ^..  109 

11.  Hardin,Henry 109 


Page. 

12.  Irwin,P.J 109 

13.  Irwin,  Tobe 109 

16.  Jenkins,R 109 

17.  Lard,  Barney,  No.  2 109 

20.  Morg^.n.T.J 109 

21.  Sikes.W 110 

22.  Slav,  Adolphns 110 

23.  Shaw,  Mack 110 


lAst  No.  4. — Names  of  pirsons  whose  names  do  not  appear  on  the  poll-books,  buttvho  swear 
they  were  at  the  election  and  voted  for  Clayton. 


Page. 

Marshal,  Henry 90 

Ot«m,  Frei-uian Ill 

Otem,  David    112 


Page. 

1.  Arnold,  Peter 83 

2.  Barnes,  .Terrv 89 

3.  Beckham,  Riiben 106 

4.  Clark.Nick 94 

5.  ChafHn,Geo 103 

6.  Gregory,  Heuston 106 

7.  Harshaw,  J.  W 80 

8.  Hughe-s,  John 88 

9.  Henderson,  Thos 95 

10.  Jenkins,  Paul 92 

11.  Jarmin,  Peter 101 

12.  Locke,  Lew 87 

13.  Mor.in,  Henry 83 

14.  Madden,  Chris 84 

15.  Musgrave,  Dock 85 

Total  Dumber  of  name.s  on  poll-Look 319 

Return  shows  Breckinridge 186 

Clayton 132 

Tickets  show  Breckinridge 174 

Clayton 134 

There  are  eleven  less  tickets  than  there  are  names  on  the  poll-book. 


Reeve,  Morrison. 

Robinson,  A 

Runnels,  H.  R 

Simon,  •)  oseph 

Slay  ton,  Lucius.... 
Thompson,  Henry. 

Vincent,  J.  M 

Wilson,  H 

Weaver,  Claib 

Woods,  Noah 

Woods,  Alex 


96 
99 
106 
86 
98 
91 
71 
78 
80 
89 
96 


CLAYTON   VS.   BRECKINRIDGE. 


703 


List  No.  1 48 

List  No.  2 105 

List  No.  8 23 

LiBtNo.  4 31 

Total .* 207 

Below 2 

209 
Names  of  voters  who  testify  they  voted  for  Clayton  and  are  on  poll-list,  hut  no  ticket  in  tax. 

Page.    I  Page. 

1.  Baford,Bob 70  |  2.  Miller,  Calvin UO 


Page. 


COTTON  PLA.NT  TOWNSHIP,  WOODRUFF  COUNTY. 

List  of  voters  shown  to  have  voted  for  Breckinridge. 

Hennigdon,  James 678 

TOWN  OF  AUGUSTA,  WOODRUFF  COUNTY. 

List  No.  1. — Names  of  persons  appearing  on  the  poll-books  of  said  precinct  who  are  re- 
turned as  voting  for  Breckinridge  toho  have  testified  they  voted  for  Clayton. 

Page.  Page. 

1.  Anltevery,  ^ ..—...        52     5.  .James,  Napoleon 49 

2.  Barfoot,  Emmet 45      6.  Johnson,  Granville 54 

3.  Price,  Moses „...        46      7.  Moore,  Thomas 44 

4.  Hampton,  Sam 47      8.  Williams,  Mose 47 


List  No,  2. — Names  of  persons  appearing  on  the  poll-iook  of  said  precinct  who  are  relumed 
as  voting  for  Clayton  who  appeared  and  testified  they  so  voted. 


1.  Bobo,  A.B 

2.  Gartner,  Warren 

3.  Cook, J.J 

4.  Cook,  W.  A 

6.  Chambers,  W.  H 

6.  Derain.C.H 

7.  Davis,  William -.. 

8.  Hairis,  Henderson 47 

9.  Harris,  Tom  H 54 

10.  Hinkston,  G«o 51 

11.  Hnrdy,  Albert 48 

12.  Hamlet,  Ike 54 

13.  Kjiox,Henry 53 


Page. 
51 
46 
55 
56 
62 
46 
48 


14.  Martin,  John 

15.  Malone,  William 

16.  Montgomery,  C 

17.  Martin,  Lewis... 

18.  Roildv,Jen-y , 

19.  Roddy,  Alex 

20.  Rider,  Ed 

21.  Rodgera,  J.  H  ... 

22.  Reese,  Mark 

23.  Williams,  Jim... 

24.  Wilson,  H.H 

25.  White,  Charley.. 

26.  Willi8,E.J 


Page. 
46 
52 
47 
56 
51 
52 
57 
53 
48 
47 
49 
52 
57 


List  No.  3. — Names  of  persons  appearing  on  the  poll-hook  of  said  precinct  who  are  returned 
as  voting  for  Clayton  who  were  not  found,  but  are  proven  to  be  Bepublioans  and  to  have 
been  furnished  with  Clayton  tickets. 


Page. 

1.  Battle.  L 57 

2.  Ford,  R.H 45,57 

3.  Jackson,J 57 

4.  Kerr, CM 57 

5.  Knox.Geo 58 


6.  Leach,  D.D 

7.  Lock,  Henry.... 

8.  McGloflm,  J.  T 

9.  Pettigrew,  Dan. 
10.  Knox,  Geo 


Page. 
58 
58 

58 

.        58 

58 


List  No.  4 — Names  of  persons  whose  names  do  not  appear  on  the  poll-books  of  said  precinct 
who  swear  they  were  at  the  election  and  voted  for  Clayton. 


1.  Allen, Lewis  .... 

2.  Curry,  Dock 

3.  Chambers,  D.  W . 

4.  Smith,  Harvey  . . 


Page. 
62 
48 
53 
48 


5.  Woods,N.W... 

6.  Davis,  Wm.  (no  iicket  in  box). 

7.  Reese,  M.  (do  ticket  in  bos)  . .. 


Page. 
54 
48 
48 


Total  number  of  names  on  poll-book. 1.34 

Return  shows  Breckinridge 98 

Clayton 34 

Tickets  show  Breckinridge 94 

Clayton 3^ 


704 


CLAYTON   VS.    BRECKINRIDGE. 


Names  of  voters  whose  tickets  were  scratched,  hut  who  swear  they  voted  an  unscratched  ticket 

for  Clayton. 

Paga 
1.  J.W.Nelson 65 


lAst  of  voters  who  swear  they  voted  for  Breckinridge, 


1.  (J.W.Headen. 


60 


AUGUSTA,  WOODRUFF  COUNTY. 

List  of  voters  shown  to  have  voted  for  Breckinridge. 

Page. 

1.  Henderson,  John  (convicted  of  felony) 658 

2.  Moore. W.lf.  660 


RIVERSIDE  PRECINCT,  WOODRUFF  COUNTY. 

List  JVo.  1. — Sanies  of  persons  appearing  on  the  poll-hook  of  said  precinct,  who  are  re- 
turned as  voting  for  Breckinridge,  who  have  testified  they  vottdfor  Clayton. 


Page. 

1.  Anderson,  John 120 

2.  Beverly, Henry 131 

3.  Beverlv,  A.H 122 

4.  Barton,  Bob 119 

6.   Campbell,  H 62 

6.  Cole,  George 120 

7.  Cotnpton,  Green 124 

8.  Eason.John 129 

9.  Gilchrist,  Fred 117 

10.  Hunt,  Jim 122 

11.  Haywood,  Fred 130 

12.  Henderson,  Lewis 119 

13.  Jones.Ross 117 

14.  Jaokson,  Allen 123 

15.  Johnson,  Geo 113 


Page. 

16.  Kendrick,  F 116 

17.  Miller,  Joe 115 

18.  Patteraon.A 124 

19.  Partee,R.M: 118 

20.  Parmer,  Barney 122 

21.  Ru8Sell,E.J 114 

22.  Kiissel,  Harrv 115 

23.  Kollins,  Andrew 114 

24.  Ko<ldv,Mace 114 

25.  Hausbter,  Alex 118 

26.  Simpson,  Jim 118,131 

27.  Williams,  Gus 123 

28.  Walton,  Bew 123 

29.  Wess,  Jessie 132 


List  No,  2. — Names  of  persons  appearing  on  the  poll-hook  of  said  precinct,  who  are  re- 
turned as  voting  for  Clayton,  who  appeared  and  testified  they  so  voted. 

Page. 


Page. 

1.  Allen,  John 120 

2.  Buggs,  Geoige 121 

3.  Brewster,  Tony 122 

4.  Coy.Hamil 120 

5.  Cariker,  Bill 120 

6.  Calvin,  John 116 

7.  Cariker,  Arthur 124 

8.  Billard,  Allen 131 

9.  Freeman,JeflF 114 

10.  Goligbtlv,  A.D 113,131 

11.  Gray,  Fe"lix 132 

12.  Jackson,  George 119 

13.  Jones,  Mack 117 

14.  Kin2,Mannel 117 

15.  Little.Joe 116 

16.  Morgan,  William 131 


17.  Massev.E 123 

18.  Miller;  Charles 121 

19.  McPheters,B.Y 125,133 

20.  Penn,  Christopher 118 

21.  Page.Monroe 116 

22.  Palmer,  B.irney 122 

23.  Rawlins,  Sam  117 

24.  Redden,  Alf 121 

25.  Redden.Henry 116 

26.  Roddv,  Lewis 117 

27.  Still,Lee 130 

28.  Spiller,  Henry 115 

29.  Tallman,  Alf.  (no  ticket  in  hox) 119 

30.  Westmoreland,  Claud 121 

31.  White,Jim 131 

32.  Jone8,Ros8 117 


List  No.  3. — Names  of  persons  appearing  on  the  poll-hook  of  said  precinct,  who  are  re- 
turned as  voting  for  Clayton,  who  were  not  found  hut  are  proven  to  he  Republicans  and 
to  have  heen  furnished  with  Clayton  tickets. 


Page. 

1.  Adams,  James 133 

2.  Austin,  Ben 133 

3.  Bobo.L 133 

4.  Cha.ssy,  W 133 

5.  Chase,  W 133 

6.  Chase,  Asbury 133 

7.  Davis,  Simon 133 

8.  Epps,  Archie 133 

0.  Epps.  James 133 

10.  Freeman,  James 133 

11.  Forbes,  Lewis 130,133 

12.  Henry,  Clavbum 133 

13.  Johnson,  O.D 133 


Page. 

14.  Morgan,  Bunch 133 

15.  Matheny.  Tom 13.'i 

16.  Massey,  Jack 133 

17.  Miller;  Alfred 133 

18.  Miller,Louis 133 

19.  Robinson,  Mack 133 

20.  Roddv,  Chas 133 

21.  Sheppard,  Anthony 133 

22.  Veeder,  S 133 

23.  Weslev.  John 133 

24.  Watson,  L.  A 133 

25.  Watson,  S.  W 133 


Note. — It  is  admitted  of  record  by  Breckinridge  that  these  persoua  were  at  the 
election  and  voted  for  Clayton  (p.  133). 


CLAYTON    VS.    BRECKINRIDGE. 


705 


List  No.  4 — Names  of  persons  whose  names  do  not  appear  on  the  poll-look  of  said  precinct 
who  swear  they  were  at  the  election  and  voted  for  Clayton. 


Page. 

1.  Allen,  Freeman 121 

2.  Forbes,  Lewis 


Page. 

3.  Roddy,  Eaiice 132 

4,  Snoddy,J.A 132 


Names  of  voters  who  voted  for  Clayton,  iui  vo  ticket  in  lox. 

Page. 

1.  Tolman,  Alfred 11» 

Total  number  of  names  on  poll-book 257 

Return  shows  Breckinridge 197 

Clayton 59 

Tickets  show  Breckinridge 192 

Clayton 52 

There  are  thirteen  less  tickets  than  there  are  names  on  the  poll-book.     « 

List  No.  1 29 

List  No.  2 32 

List  No.  3 28 

List  No.  4 4 

TotaJ 89 


PLUMMERVILLE  VOTE,  CONWAY  COUNTY. 


Names  of  persons  who  have  testified  they  were 

County,  Ark.,  on  November  6,  1888,  and 
were  otherwino  proved. 

Page. 

1.  Acklin.W.R .*. 197 

2.  Albright,  Henry 208 

3.  Alexander,  W.  M 482 

4.  Adams,  Willis 216 

5.  Andrew,  Ned 74,l8tRec.  457 

6.  Alexander,  Alfred 266 

7.  Allen,  J 248 

8.  Armstead,  E 195 

9.  Artlmr,  Charles 250 

10.  Anthony,  H.  A 240 

11.  Atkinson,  T.J 489 

12.  A i-m stead,  Levy Ist  Reo.        59 

13.  Alexander,  John 252 

14.  AUington,  John 206 

15.  Adams,  Amos Ist  Rec.        77 

16.  Addison,  J.  A Ist  Rec.        76 

17.  Alexander,  Fenton 1st  Rec.        49 

18.  Acklin,  W.  R  ,  ir let  Rec.        50 

19.  Atkinson,  J.  M. 478 

20.  Alexander,  E.  D 1st  Reo.        43 

21.  Ackron,  W.  R 225 

22.  Albright,  Wm 258 

23.  Alexander,  Henry 245 

24.  Aaron,  Lsaao 2l'8 

25.  Brown,  W 240 

26.  Brown,  Sam , 489 

27.  Brown,  John 209 

28.  Brown,  Cager Ist  Rec.        71 

29.  Brown,  Daniel 237 

30.  Brown,  Kiench 457 

31.  Brown,  W.H 459 

32.  Brown,  R.B 197 

33.  Brown,  H.B 216 

34.  Black,  Wash 452 

35.  Brown,  Sam,  No.2 550 

36.  Black,  P.  B 1st  Rec.        48 

37.  Black,  Wm.. 1st  Reo.  294 

38.  Bhick.  S-ylvester 472 

39.  Black,  Robert 247 

40.  Black.J.B 293 

41.  Blair,  Van  227 

42.  Berrv,  Peter 267 

43.  Bowling, J.M 256 

44.  Baldwin.  Monroe 457 

45.  Burks,  W    2U 

46    Bailey,  Jack 473 

47.  Bailey.Geo 268,473 

48.  Bailey,  Thomas 1st  Rec.        46 

49.  Blackburn.  Wilson 203 

60.  Belden.Toll 473 

H.  Mis.  137 45 


at  the  election  in  Hoicard  Township,  Conway 

voted  for  John  M.  Clayton;  or  whose  votes 

Page. 

51.  Birdie,  Morgan 218 

52.  Bloom.Gus 550 

53.  Burt,  Alex ^ 199 

54.  Broton,  James  P 1st  Rec.  60 

55.  Bell,Rol)ert 248 

56.  Booker.Ben 1st  Rec.  64 

57.  Booker,  Aaron 271 

58.  Bradford,  John Ist  Rec.  61 

59.  Barnea,Lewis 223 

60.  Bowsir,  F.  Pierce 253 

61.  Bowgan,  Isaac 234 

62.  Blassingame,  John 1st  Rec.  f6 

63.  Bowsir,  James Ist  Reo.  81 

64.  Bradley,  Charles 450 

65.  Bowlin.Jack 236 

66.  Butler,  Harry Ist  Rec.  45 

67.  Byram,  John 221 

68.  Cox,  Albert 203 

69.  Cox,  Garrett 471 

70.  Cox,  Tolbert 268 

71.  Cox,  Green 1st  Reo.  55 

72.  Carter,  Jonas 1st  Rec.  60 

73.  Carter,  Dock 268 

74.  Carter,  Robert 361 

75.  Carter,Gu3 200 

76.  Carter,  Jacob 480 

77.  Carter,  James 220 

78.  Carter,  Dock,  No.  2 453 

79.  Clilton,  Henry 253 

80.  Compton.D 205 

81.  Compton,  John Ist  Kec.  58 

82.  Comproii,S.C IstRec.  58 

83.  Cook,  Wm 210 

84.  Clark.Ned 215 

85.  Clark,  David 245 

86.  Clark,  Thomas 447 

87.  Ghampon,  Dan'l 1st  Rec.  57 

88.  Cartwiight,  Geo 204 

89.  Clements,  Jack 477 

90.  Culp,  R.  A IstRec.  62 

91.  Cokord,  David    476 

92.  Carrington,  Sam'l  C 256 

93.  Colconi.  R.  C 256 

94.  Chapplr,E.R 202 

95.  Coy,  Frank  198 

96.  Chase,  Danl IstRec.  62 

97.  Coles.  James 341 

98.  Call,  Nelson 243 

99.  Cash.Mike 241 

100.  Calvin.John 242 


706 


CLAYTON    VS.    BEECKINEIDGE. 


Names  of  persons  who  hg,ve  testified  they  were  at  the  election  in  Howard  Township,  Conway 
County,  Ark.,  on  2^'oceinher  6,  188a,  etc. — Continued. 


Page. 

101.  Cross,  "William 271 

102.  Chisom.J.  W 1st  Reo.  56 

103    Chisom,  Elijah 52,  Ist  Rec.  207-550 

104.  Curl,  Fred    Ist  Rec.  78 

105  Childs,  Thomas 269 

106  Chambers,  Jake 240 

107.  Coleman,  H 206 

108.  Collam,  LoDdon .^ 265 

109   Chism.  Berry 550 

110.  Caraway,  G.W 259 

111,  Duncan,  Jogeph. .......... ....Ist  Reo.  45 

112  Durham,  Jno  479 

113  Durham,Jno.S 253 

114  Durbam,T.J let  Rec.  63 

115  Durham,  Sam'l  A let  Reo.  70 

116  Durham,Win 253 

117  Dean,  V.D 211 

118  Davis,  "W.D 259 

119  Davis,  King 449 

120;  Davis,  J.P 344 

121  Davis,  John 250 

122  Davis,  G.W 252 

123.  Dobbins,  Thomas 295 

124.  Dial,B 551 

125  Douglass, Fred IstReo.  47 

126  Dougla88,Ned 1st  Rec.  76 

127.  Day,  Fountain 249 

128   Davie.George Ist  Rec.  75 

129.  Do wdle,  George Ist  Rec.  76 

130'  Dowdle, Joseph IstReo.  59 

13l'  Dowdell,  Wm Ist  Rec.  62 

132'  Dowdle,  John Ist  Rec.  60 

133.  DowdelLMayea ..  270 

134.  Dill,  Thomaa 477 

135   Dever.M 226-562 

136.  Don.ldson,  R IstReo.  48 

137j  Dackett,  Sim IstReo.  50 

138.  Diggs,  W.  A 255 

139.  Devers.  Milton 479 

140    Dickerson.Dan 207 

141.  Evans,  EUjah 478 

142.  Evans.Sebe - 249 

143.  Edmonson,  Julius 474 

144.  Edwards,  Thomas 212 

145.  Embrv,  M 263 

146.  Embry,  J  hn Ist  Rec.  79 

147.  Exom,  C.**L 473 

148.  Epps.Jerry 208 

149.  Echols,  Robert 552 

150.  Erwin,  Doc 552 

151.  Fitts,  Matt 252 

152.  Fo8ter,John 475 

153.  Foster,  Lewis IstReo.  51 

154.  Flake,  James Ist  Rec.  58 

155.  Ford,  John IstReo.  48 

156.  rortson,W.  K 210 

157.  Frasier.W.  T IstReo.  44 

158.  Greenlaw, Isaac 475 

159.  Greenlaw,  Nelson 478 

160.  Greenlaw,  R.  A 446 

161.  Greenlaw,  Henry 205 

162.  Garrison,  James  F 1st  Rea  69 

163.  Garrison,  F 265 

164.  Galimore,Ed 268 

165.  Green,  Allen IstReo.  59 

166.  Green,  "Wm.  J 204 

167.  Green,  W.  M IstReo.  77 

168.  Green,  Robin 233 

169.  Gill,  Monroe *. 252 

170.  Graves,  Henry IstBeo.  52 

171.  G  rat  ton,  A.  G 271 

172.  Good.Isaac 245 

173.  Gorwin,  G.  "W Ist  Bea  62 

174.  Garrett,  John 224 

175.  Graham,  H 225 

176.  Gray,  Rich'd  J 649 

177.  Gray,  Ed 265 

178.  Hervey,  Wesley 247 

179.  Hervey,  Press 232 

180.  Hervey,  A.H 620 

181.  Hervey,John 520 

182.  Hervey,  A.H 343 

183.  Hervey,  Alex 62,l8tBec.  474 

184.  Hervey,  Wesley,  No.  2 254 


Page. 

185.  Hervey,  Samtiel 234 

186.  Hervey.Leroy 217 

187.  Hervev.Mike 254 

188.  HerveS',  William 205 

189.  Hervey,Dick  489 

190.  Hervey,  Nelson  H 265 

191.  Howafd.F    474 

192.  Howard,  Charles 474 

193.  n.)w.'ird,  Columbus. 267 

194.  Brigands,  James 459 

195.  Howard,  F 207 

196.  Holland,  Geo   211 

197.  Hendricks,  Rob't 222 

198.  Harhen.  Jno.  T 296 

199.  H<iod,Alf 232 

200.  Hood,  Benjamin Ml 

201.  Hendtick.Geo 471 

202.  Hendrick,Ed   221 

203.  Henderson, W.H Ist  Rec,  61 

204.  Henderson,  Wyatt 481 

205.  Henderson,  Albert 234 

206.  Higgins,  Frank 457 

207.  Higgins,  Obe 243 

208.  Hawley,  Henry 479 

209.  Hunter.King 211 

210.  Hunter,  Anthony 236 

211.  Hayes,  Noah IstReo.  48 

212.  Hayes,John 244 

213.  Haye8,Robert 212 

214.  Hayes.John 244 

215.  Hayes,  Ben 209 

216.  Hayes,Gen'l 476 

217.  Haves,  Alex..... 224 

218.  Haves,  R.H 46, 1st  Rec.  454 

219.  Hooks,  General 253 

220.  Harri8,R.G 249 

221.  Harris,  Sussex 238 

222.  Harris,Cager 224 

223.  Harri8,A 200 

224.  Harri8,G 267 

225.  Hardin.G.W 262 

226.  Hodses,  A.lvist   1st  Rec.  68 

227.  Harriway,G.  W 1st  Rec.  47 

228.  Harriway,M.C 1st  Rec.  50 

229.  Hollv,  Obediah 240 

230.  Hill,' William  265,295 

231.  Huston,  Eldredge 267 

232.  Houston,  Elijah 456 

233.  Harriway,  "W.  A 269 

234.  Hall,C 201 

235.  Hill,T 448 

236.  Harrison,  R.H 454 

237.  Hall,John 263 

238  Haines,  Abe 457 

239.  Hinos,  Anderson 199 

240.  HiAe8,Dixon 198 

241.  Hines,  Hampton 227 

242.  Hoyle,  ViigU 364 

243.  House.J 264 

244.  Hill,  Arch 449 

245.  Hill,  Sam 256 

246.  Harding.J.T IstReo.  49 

247.  Hardman,  Sam 456 

248.  Holmes.Jim 198 

249.  Hickman,  Nat 264 

250.  Holman,  Gaston 256 

2.51.  Hill,Pres8 458 

252.  Ingrahara,W.T 269 

253.  Jouea.Matt 222 

254.  Jones,  Milton 478 

255.  Jones,  Wiley 268 

256.  Jones,  Henry 232 

257.  Jones,  Edmund Ist  Rec.  56 

258.  Jones, Ephraim IstReo.  80 

259.  Jones,  Gilbert 258 

260.  Jones,  Daniel  E 257 

261.  Jones,  JeiTy 263 

262.  Jones,  Isom 227 

263.  Jones,  Lem  228 

264.  Jones,  Albert 198 

265.  Jone8,D Ist  Rec  82 

266.  Jones,M 454 

267.  Jones,A.W IstRec.  60 

268.  Jones, Isham IstRec  81 


CLAYTON    VS.    BRECKINRIDGE. 


707 


Names  of  persons  who  have  testified  they  were  at  the  election  in  Howard  Township,  Conway 
County,  Ark.,  oi^  November  6, 1888,  etc. — Cou tinned. 


270. 

271. 

272. 

273. 

274. 

275. 

276. 

277. 

278. 

279. 

280. 

281. 

282. 

283. 

284. 

285. 

286. 

287. 

288. 

289. 

290. 

291. 

292. 

293. 
294. 
295. 
29t). 
297. 
298. 
299. 
300. 
301. 
302. 
303. 
304. 
305. 
306. 
307. 
308. 
309. 
310. 
311. 
312. 
313. 
314. 
315. 
316. 
317. 
318. 
319. 
320. 
321. 
322. 
323. 
324. 
325. 
326. 
327. 
328. 
829. 
330. 
331. 
332. 
333. 
334. 
335. 
336. 
337. 
338. 
339- 
340. 
341. 
342. 
343. 
344. 
345. 
346. 
347. 
348. 
349. 
350. 
351. 
352. 


Jones,  Isom,  No.  2 473 

Jones.S.H 359 

Jone.s,  Henry 234 

Jones.D.S 215 

Johnson,  C.T 2,34 

Johnson.Ford 360 

Johnaon,  M 479 

Johnson,  Jerry.... 245 

Johnson,  Richd Ist  Rec.  49 

Johnson,  Bailey 221 

Johnson,  Albert IstEec.  55 

Johnson,  Isaac 219 

Johnson,  Frank 244 

Johnson,  Henry Ist  Eeo.  59 

Johnson,  Isaac 219 

Johnson,  Isaac,  No.2 221 

Johnson,  Lsaac  S 451 

Jenkins,  Peter ' 225 

Jenkins,  Raymond Ist  Reo.  56 

James,  Thomas  Ist  Rec.  65 

Jamison,  John  R 233 

Jamison.  Jacob Ist  Rec.  58 

Jamison,  J.  W 250 

Jamison,  Isaac ;.. 208 

Jordan,  Jacob 453 

Jordan,  William 271 

Jennings,  Nathl 359 

Kirtland,  G.  W 255 

Kennedy,  Wm 242 

Kennedy,  npnry 220 

Kelsej',  Henry 26S 

King,  Darld 256 

King,  William 241 

Kinip,  A 49,l8tReo.  478 

Kieth,  A 213 

Kennedy,  Jerry .^52 

Kellv,  Mose 552 

Levels,  King 246 

Levels,  A 457 

Levels,  Robt Ist  Reo.  44 

Lambert,  Kanzo Ist  Rec.  77 

Lewis,  Charles  M 200 

Littlefield,  L 251 

Livingston,  Adam Ist  Keo.  46 

Long,  Alfred  245 

Lackey,  Dadd 79,  Ist  Reo.  479 

Lindsley,  Perry 448 

Lambert,  Jordan Ist  Iteo.  82 

Lncas,  Frank Ist  Bee.  45 

Luca«,  J 266 

Lane,  Ike 453 

Lewis,  Thomas 245 

Leslie,  W.D T ....  199 

Leverett,  C 269 

Lindsley,  Al 458 

Moore,  Sylvanus 210 

Moore,  Samuel 254 

Moore,  Gen'l 1st  Rec.  61 

Mooie,  Monroe 1st  Rec.  62 

Moore,  John  H 343 

Moore,  John  H.,  No.  2 201 

Moore,  Dan 218 

Moore,  Washington 269 

Moore,  Frank 271 

Moore,  Geo.  H 343 

Moore,  Miles 255 

Moore,  John  W 341 

Moore,  Joseph l8t  Keo.  46 

Miller,  Harry,  No.  2 .^...  2.'>9 

Miller,  Wesley 294 

Miller,  Harry 249 

Miller,  Anthony 264 

Morris,  Gas 251 

Martin,  D.N 472 

Mormon,  Lewis 480 

McColloiigh,  Al 75,  let  Reo.  244 

McColloiigh,  Gabe 480 

Mason,  Jerry 2!i5 

McDaniel,  Bob 552 

McDaniel,  Napoleon 226 

McDaniel, Wm 448 

Bnchiinan,  Nelson ^ 650 

McDaniel,  .James 217 

Mitchell,K.  A 215 


Page. 

353.  McMurrav,  Richd 450 

354.  Morgan,Wash 258 

355.  Majors,  Uupid LstRec.  50 

356.  Manning,  Kobt IstReo.  73 

357.  Metchum,  Lewis 478 

358.  McKinney,S 489 

359.  McHinney,  S 255 

360.  Macklin,iDavid Ist  Rec.  65 

361.  Matth6ws,LC 452 

362.  Matthews.  Philip 475 

363.  Mitchell,  Henry 454 

364.  Madlock,  Bob 473 

365.  Mitchell,  L.M 242 

366.  Mavbiirn, Wiley IstRec.  56 

367.  Mattox,  Clark 242 

368.  McCiilly,  John 447 

369.  McCully,E.D 232 

370.  Neely.Jim 480 

371.  Owens. Geo IstRec.  50 

372.  Otem,Johu 364 

373.  Ostler,  Alex 447 

374.  0.slee,Richd 360 

375.  Ostler,James 459 

376.  PaiTott.M 551 

377.  Parrot,  Frank 477 

378.  Parrot,  Bryant 473 

379.  Parker.  A Ist  Kec.  73 

380.  Adams,  Joshna 549 

381.  Parker,  Arthur 235 

382.  Parker,  Wm 447 

383.  Parker,  Wm.,  No.  2 553 

384.  Potter,  Dick IstRec.  71 

385.  Payne,  Bedford 521 

386.  Payne,  Squire 489 

387.  Payne,Siim 249 

388.  Page,FrankB 231 

389.  Page,  W.I 237 

390.  Phillip.s.H 358 

391.  Perry,  W.T 553 

392.  Parry,  Isom 475 

393.  Pope.Jobn 239 

394.  Pope,James 262 

395.  Pope,  Theopolis 215 

396.  Pope,  Peter   361 

397.  Powell.Lewis 236 

398.  Patterson, N 341 

399.  Peoples,  Geo 248 

400.  Price,Ben 267 

40L   Price,Albcrt 246 

402.  Patterson,  Dan 476 

403.  Reese,Tobe IstRec.  57 

404.  River9,E 48,  l.st  Rec.  479 

405.  Rivers,  Dave 472 

406.  Richardson,  AV.  R 265 

407.  Richardson,  Clem 458 

408.  Randolph,  W.M 269 

409.  Ridlev.Rov 456 

410.  Richfllo,  Richd 197 

411.  Rozell(,J.R 450 

412.  Rice,Charles IstRec.  52 

413.  Rowley,Eph 489 

414.  England.  Charles 246 

415.  Raglen,  Lewis 226 

416.  Rice.Milton 448 

417.  Rye,Scott 365 

418.  Raglen,  Stephen 226 

419.  Reed, James IstReo.  57 

420.  Rainwater,  J.D IstRec.  54 

421.  Robinson,A.R 204 

422.  Reasoner,  Arrastead 78, 1st  Rec.  477 

423.  Rothwell.Alex.A 216 

424.  Kaglan,  Lee.  IstReo.  73 

425.  Smith.Thomas 268 

426.  Smith,  Alex 359 

427.  Smith,  Saml 272 

42a    Smith,  W.B 218 

429.  Smith.Ed - 246 

430.  Smith,  Wade 222 

43L   Smith,  Thomas,  jr 270 

432.  Smith,  A 201 

433.  Smith,  John 241 

434.  Smith,J.P IstRec.  49 

435.  Smith,  Sam'l IstRec.  70 

436.  Adams,  Jo.ihua 649 


708 


CLAYTON   VS.    BRECKINRIDGE. 


Names  of  persons  who  have  testified  they  xcere  at  the  ejection  in  Howard  Township,  Conimy 
County,  Ark.,  on  November  6,  1888,  a(c.— Continued. 


437.  Bnchanan.K 549 

438.  Smith,  C.J 458 

439.  Sunderland.  Jack 482 

440.  Strickland,  L.  K 200 

441.  Stricklin.  James  M 217 

442.  Slayton,  John 270 

443.  SlaVton,  John,  No.  2 IstEcc.  67 

444.  San  a  ers,  Henry 456 

445.  Sanders,  Lewis 270 

446.  Sloan,  GfcD 553 

447.  Sloan,  Marion 553 

448.  Sheppard.Sam 553 

449.  Street,  Felix 270 

450.  Shaw,  Haywood 232 

451.  Stevens,  Cager 1st  Bee.  56 

452.  Stubbs,  Jacob 452 

453.  Spivey,  Watt 225 

454.  Snipes,  John 296 

455.  Snipes,  T.C 259,296 

456.  Snipes.  Sam'l 247 

457.  .Shelton,  Robt 449 

458.  Steele.Henrv 451 

459.  Stephenson,  Henry 224 

460.  Seadan,  Ben 473 

461.  Scott,  Ruben 231 

462.  Smiles,  William 453 

463.  Salters,  John  A 264 

464.  Tallev.Ed.jr 238 

465.  TalleV.Ed 231 

466.  Thornton,E.D 204 

467.  Thornton,  Hiram 248 

468.  Tolliver,  H .". 224 

469.  Thomas,  Geo 456 

470.  Thomas,  Carolina Ist  Eec.  54 

471.  Thomas,  F.  M 264,265 

472.  Turner,  Anthony 240 

473.  Thompson,  H.  S 452 

474.  Tesezivan,  Wm 476 

475.  Taylor,  Virgil 478 

476.  Thompson.  J 219 

477.  Tvler,  Jacob 225 

478.  Trent,  Peter Ist  Rec.  78 

479.  Tavlor.R 343 

480.  Taylor,  Geo.  H 479 

481.  Tumer,Sam 554 

482.  Thompson,  Thomas 471 

483.  Thompson,  Ross 238 

484.  Thornton,  Andover 216 

485.  Thornton,  Hiram,  No.  2 257 

486.  Tuck.r,Jacob 342 

487.  Tharp,Sila8 222 

488.  Tavlor,  William 263 

4e9.  Taylor,  Arthur 222 

490.  Thompson,,  Charles 472 

491.  Tavlor,  Jerrv 213 

492.  Thurman.Wm.  M 249 

493.  Theaman,  Will 476 

494.  Taylor,Doc 452 

495.  Thompson,  Alex 364 

496.  Venable,  Alex 294 

497.  Yemen,  Ben 342 


Page. 

498.  Yemen,  Prince 203 

499.  Yemon.Bill 201 

500.  Vemen,Ed 447 

501.  Yemen.Barney 201 

502.  Vick,J.B    224 

503.  Williams,  Henry 201 

504.  Williaras,E.D IstReo.  72 

505.  Williamson,  James 1st  Rec.  74 

506.  Williams,  E.  U IstRec.  57 

507.  Williamson.A 2-36 

508.  Williams,  Wm 477 

509.  Williams,  Amos 481 

510.  William8,Sam 453 

511.  Williams,  Loomis 249 

512.  Williams,  Thompson 205 

513.  AVilliams,  J.  W 2.il 

514.  Williams,  Henry 204 

515.  Williams,  Irwin 451 

516    Williams,  James 247 

517.  Williams,  Henry 210 

618.  Washington,  Alex 199 

519.  Washington,  Geo 248 

520.  Wa.shington,  ."^am 416 

521.  Washington,  Willie 458 

522.  Washington,  Mauson 343 

523.  Wilson,  AntUrson    475 

524.  WiLson,  Alfred 342 

525.  Wilson,  Peter l.stRcc.  80 

526.  WUson,  JeflF 472 

.'>27.  Wilson,  Henry 554 

528.  Wilson,  Thomas 295 

529.  Wilson,  Jesse 481 

530.  Wilson,  W.  M 201 

531.  Worship,Bon 256 

5,12.  Wallace,  John IstRec.  72 

533.  Woodson,  J.  W 257 

534.  Woodson,  A 344 

535.  Wilev,  Wesley 251 

536.  W.nh'ls,  Charles 344 

537.  Wisham,  E.W 521 

538.  White,  James  C i67 

539.  Watson,  Richard,  jr 2.58 

540.  Winn,  George 480 

541.  Wagner,  Ned 239 

542.  Wat80n,R 258 

543.  Winston,  Richard  W 213 

544.  Watson,  Joe 480 

545.  Woods,  George  W 232 

546.  Wright,H.  W 202 

547.  Walker,  William 268 

548.  Winston, F.I 234 

549.  Wallace,  Matt 250 

550.  Wright,  Madison 251 

551.  Wilson,  IJelfltld 257 

552.  Walls,  Henry 221 

553.  Walls,  Alex 253 

554.  White,Sam IstReo.  92 

555.  Walls,  Alfred 342 

5.56.  Wilson,  H.W 218 

5.57.  Tancv.Bragg 343 

658.  Jones,  MUton 478 


CLAYTON   VS.    BEECKINEIDGE. 


709 


Names  of  persons  who  have  testified  they  were  at  the  election  in  Howard  Township,  Conway 
County,  Ark.,  on  2f^ovember  6,  188y,  and  voted  for  C.  B.  Breckinridge,  or  whose  votes 
were  otherwise  proved. 


1. 
2. 
3. 

4. 

5. 

6. 

7. 

8. 

9. 
10. 
11. 
12. 
13. 
14. 
15. 
10. 
17. 
18. 
19. 
20. 
21. 
22. 
23. 
24. 
25. 
26. 
27. 
28. 
29. 
30. 
31. 
32. 
33. 
34. 
35. 
36. 
37. 
38. 
39. 
40. 
41. 
42. 
43. 
44. 
45. 
46. 
47. 
48. 
49. 
50. 
51. 
52. 
53. 
54. 
55. 
56. 
57. 
58. 
59. 
60. 
61. 
62. 
63. 
64. 
65. 
66. 


Page. 

Allgood,  S.  B 821 

Branson,  E.  B 821 

Branson,  D.B 829 

Belcher,  E.J 759 

Binkley,  J.  W 761 

Brinkley,  K.  H 762 

Burns,  Aaron 762 

Bradley,  A.  R 712 


Baldwin,  K.  D 

Burcheti,  J , 

Boyett,  Frank  ... 

Bowdre,  A.  li 

Butram,  Ben 

Boren,  W.  T 

Croley,  J.  P 

Crawford,  W.  R 


782 
793 
829 
830 
711 
708 
762 
762 


Crawford,  J.  C 821 

Crawford.  R.L 825 

Chnrchwell,  J.  K 823 

Cullin.s,  C 718 

Collins,  "W.  A 700 

Cris-sen  berry,  G.  F 789 

Cross,  H T. 761 

Cash,  John 760 

Christenberrv,  M 778 

Chambers,  W.  C 777 

Dean,  A.  C 821 

Dean,  R.  H 822 

Dixon,  T.  P 778 

Deaver,  Nathan 698 

Deavcr,  Sam 697 

Edwards,  John 829 

Evans,  J.  M 717 

Fields,  TV.  J 709 

Ford,  George  "W 694 

Ford,  J.F 711 

Ford,G.W 694,705 

Ford,D.  C 825 

Gwvnn,Wm 759 

Garret,  J.W 710 

Garrett,  W.F 707 

Garrett,  CM 708 

Garrptt,John 841 

Gardner,  W.J 717 

Gordon,  J.  M •. 759 

Gordon,  J.  W 770 

llobbs,  R.  K.  John 789 

Hobbs,  W.  T 718 

Hervev,  Thos.  C 802 

Higsinbottom,  B.  W 831 

Jones,  J,W 829 

James,  Henry 693 

Johnson,  W.  T 789 

Johnson,  D.V 795 

Ketchy,  S.  R 789 

Ken!]),  James 697 

King,  J.  R 757 

King,R.M 795 

LacoHeld,S.  S 824 

Lacolield,  W.  P 757 

Lambert,  Peter 826 

Landers,  S.W 796 

Lindsay.  Carroll 778 

Littlejohn,  John  H 831 

Long,J.C 828 

Miller,  John  "W 711 


95. 

96. 

97. 

98. 

99. 
100. 
101. 
102. 
103. 
104. 
105. 
106. 
107. 
108. 
109. 
110. 
111. 
112. 
113. 
114. 
115. 
116. 
117. 
118. 
119. 
120. 
121. 
122. 
123. 
124. 
125. 
126. 
127. 


Page. 

Miller,  T.J 842 

Miller,  Lewis 788 

Miller,  J.  B 761 

Miller.G.T 841 

Miller,  G.  J 756 

Miller,  J.  W 795 

Millt-r,  W.  W 842 

Miller,  J.  D 757 

Mason  J.  T 824 

Malone,  A.  D 691 

Morgan,  Clay 7C2 

Martin,  Beniar 762 

Martin,  J.  F 771 

Moore,  Harry 696 

Mitchell,  J.  N 693 

Matlock,  J.  W 826 

Miles,   John 707 

McGohee,  Frank 696 

McCullongh.  C.  H 784 

May,  Win.  J 762 

Nesbitt,  B.  F 705 

Osborn,  J.  E 827 

Osborn,  E.  A 825 

Owens,  Jack 841 

Overstreet.  J.  H 795 

Oliver,  W.  T.  (voted  in  wrong  township 

by  mistake) 756 

Oois,  G.  J 756 

Overton,  J.  M.  (voted  at  Morrillton  for 
Breckinridge,  but  lived  at  Plummer- 
ville;  knew  he  was  voting  in  wrong 

place) 757 

Palmer,  W.  G 700,708 

Palmer,  D.  J 842 

Palmer,  J.  J 782 

Powell,  \Ve.sloy 759 

Pullman,  Pat 759 

Parker,   Rilev 707 

Plumraer,   Thos 603 

Parsley,  S.S 823 

Pate,  J.  A 823 

Pate,  R.L 691 

Roe,  Isaac 692 

Rice.  J.  A 698 

Rambo.J.  E 829 

Sims,  J.  M 692 

Stacks,  B.R 756 

Smith,  G.W 718 

Smith,  T.  S 695 

Solomon,  C.B 710 

Vance,  W.J 693 

Vann,  E.  D 717 

"Watson,  Russell 827 

Watkins,  Bob 762 

Wells,  W.T : 777 

Williams,  Mack 760 

Williams,  J.  N 758 

Wilson,C.M 825 

Wil80u,Geo 698 

White,  B.G 762,782 

White,  E.W 762 

White,  Robert 747 

Wilder,  J.  A 694 

Wolley,T.B 825 

Armstrong,  CD 840 


Vote  of  J.  M.  Overton  should  be  deducted  from  above,  because  he  voted  at  Morrill- 
tou ;  and  also  from  above  return  as  illegal;  reducing  same  to  125. 


710 


CLAYTON   VS.   BRECKINRIDGE. 


FREEMAN  TOWNSHIP,  WOODRUFF  COUNTY. 

List' of  namea  of  voters  who  went  to  the  polls  to  vote  for  Clayton  and  were  prevented  by  the 

failure  to  open  the  polls. 


Pag& 

1.  A.Abemathy 134 

2.  S.B.Bagley 136 

3.  Tolliver  Bagley 137 

4.  Wm.  H.  Lovelady 140 

5.  Win.  Johiisen 141 

6.  DanMilbuTO 141 

7.  Frank  McDowell 142 

8.  James  Giles 142 

9.  Jim  Haroldson 142 

10.  Mat-Bagby .^ 143 

11.  Monroe  Trice 143 

12.  Joe  Bradley 144 

13.  Allen  Bagby 144 

14.  Joseph  Morton 144 

15.  W.T.Pledger 144 

16.  E.D.Fleming 145 

17.  "Wm.  Barnes.. 145 

18.  Jesse  Trice 145 

19.  GecWrisht 145 

20.  Robt.  Fletcher 146 

21.  Warner  Harrison 140 

22.  Silas  Davis 147 

23.  Jno.  Davis 147 

24.  F.B.Beauregard 148 

25.  M.C.Trice 148 

26.  Jordan  Montgomery 148 

27.  E.P.  Williams 149 

28.  Weslev  Taylor 149 

29.  Alford  Bradford 149 

30.  Jno.  Smith 150 

31.  Primus  Trice 150 

32.  Price  Benson 1.50 

33.  Isom  Ballard 151 

34.  Gus  Sprewin 151 

35.  Lewis  Thomas 151 

36.  Lewis  Thomas,  No.  2 151 

37.  Myers  Gaines 152 

38.  Geo.  Trice 152 

39.  E.Lock 152 

40.  Jack  Trice 153 

41.  Bobert  Morgaa 153 


Page. 

Thos.  Swan 153 

Martin  ITarrodson 154 

Book  Trice 154 

James  Nelson 154 

Frank  Wallace 154 

John  Swan 155 

Jeff  Pitman 155 

Peter  Barker 155 

Martin  Bogard ; 156 

Lawson  Lock 156 

Aaron  Albody 156 

Geo.  llarrodson 156 

Bnrrill  Harrodson 157 

Lewis  Cross 157 

Levi  Biadley 157 

W.H.  Yateman 158 

Lewis  Bradley 158 

R.  B.Smith 158 

Richard  Smith 159 

D.  C.D.ivis 159 

Henry  Ilolstead 169 

Squire  Brrtdley 159 

Wash  Bins(m 160 

J.  O.Witherspoon 160 

Reuben  BaJy 160 

C.  L.  Harroklston 161 

Thomas  Harroldston 161 

Edward  Robinson 161 

Henrv  Sugjis 162 

Riley  Williams 162 

O.V.Vawn 165 

Jerry  Clark 165 

Mott  Baaby 166 

Tony  Harroldston... 167 

Will  Harnidstou 167 

Tom  McNoaly 1C8 

Charles  Patierson 167 

J.  W.Gilniore 168 

Bobert  Snell 168 

Tom  Ellis 161 

Joel  M.  York 161 


VIEWS  OF  THE   MINORITY. 


The  testimony  taken  is  insufficient  to  sustain  the  charges,  except  as 
to  the  conceded  Plummerville  box,  the  manner  in  which  it  was  taken 
and  abruptly  closed  by  the  investigating  committee  was  grossly  unfair, 
and  it  is  misrepresented  and  misstated  in  the  committee  report.  But 
even  if  the  testimony  of  the  voters  who  testify  as  to  how  they  voted  is 
to  be  believed,all  the  votes  in  the  boxes  attacked  which  are  not  proved 
to  h  ave  been  cast  for  Clayton  should  be  counted  for  Breckinridge.  This 
rule  should  be  applied  because  of  the  unfairness  of  the  investigating 
committee,  and.  the  exceptional  character  of  the  case. 

7U 


VIEWS  OF  THE  MINORITY. 


August  18, 1890. — Mr.  Maish,  from  the  Committee  on  Elections,  sub- 
mitted the  following  as  the  views  of  the  minority: 

This  case  arises  out  of  an  election  held  in  the  Second  Congressional 
district  of  Arkansas  for  the  position  of  Eepresentative  in  this  Congress. 
Hon.  Clifton  R.  Breckinridge  was  the  Democratic  candidate,  and  Col. 
John  M.  Clayton  was  the  Republican  candidate,  and  there  was  no 
other  candidate.  On  the  19th  of  December,  1888,  notice  of  contest 
was  served  on  Mr.  Breckinridge  by  Colonel  Clayton,  and  it  was  duly 
answered.  On  the  29th  of  January,  1889,  Colonel  Clayton,  while  en- 
gaged in  taking  testimony  at  Plummerville,  in  Howard  Township,  Con- 
way County,  met  with  a  violent  death.  This  put  an  end  to  the  contest 
in  the  form  it  then  had,  and  referred  the  whole  matter  in  its  incomplete 
stage  to  the  House  of  Representatives. 

On  March  10,  1889,  the  House  adopted  the  following  resolution : 

That,  owing  to  the  alleged  assassinatiou  of  Colonel  Clayton,  whereby  the  contest 
has  been  snspended,  it  is  of  the  highest  importance  that  the  facts  in  the  case  should 
be  thoroughly  investigated,  and  recommend  the  passage  of  the  following  resolution: 

Resolved,  That  a  subcommittee  of  iive  be  appointed  by  the  chairman  of  the  Commit- 
tee on  Elections  to  make  a  full  Jind  thorough  investigation  of  the  contested-election 
case  of  Clayton  vs.  Breckinridge ;  to  take  and  report  all  the  evidence  in  regard  to  the 
methods  of  said  election ;  to  the  contest  and  all  events  relating  thereto  or  arising 
therefrom  after  said  election,  and  as  to  whether  the  contestant  or  the  contestee  or 
either  of  them  was  lawfully  elected,  and  report  such  evidence  to  the  Committee  on 
Elections,  and  said  committee  will  report  said  evidence  and  its  findings  to  the  House 
for  further  action. 

Said  subcommittee  is  empowered  to  issae  subpoenas  for  witnesses ;  to  send  for  per- 
sons and  papers;  to  employ  a  stenographer  and  deputy  sergeant-at-arms,  and  to  sit 
during  session  of  the  House.  Said  subcommittee  may  proceed  to  Arkansas,  if  deemed 
necessary  by  them,  to  take  any  part  of  said  testimony. 

That  all  expenses  of  said  committee  shall  be  paid  out  of  the  contingent  fund  of  the 
House.  That  all  vouchers  or  expenditures  shall  be  certified  by  the  chairman  of  the 
subcommittee  of  the  Committee  on  Elections.  The  Clerk  of  this  House  is  authorized 
to  advance  the  necessary  funds  to  the  chairman  of  said  subcommittee  upon  his  drafts 
therefor  in  sums  not  exceeding  $1,000  at  any  one  time,  to  be  accounted  for  under  the 
terms  of  this  resolution,  under  the  supervision  of  the  Committee  on  Accounts. 

In  this  resolution  the  duty  and  powers  of  the  committee  are  ac- 
curately defined.  In  it  the  status  of  the  case  is  clearly  stated  j  and  to 
it  we  must  continually  refer  in  order  to  learn  the  proper  order  of  pro- 
ceedings. 

The  printed  matter  in  this  case  is  in  four  parts,  to  all  of  which  refer- 
ence must  be  had  for  a  clear  understanding  of  the  case. 

This  case  comes  from  a  district  which  has  always  gone  Democratic 
in  national  elections,  and  in  which  the  white  population  is  about  double 
that  of  the  blacks.    Once  or  twice,  in  State  elections,  the  aggregate 

713 


714  CLAYTON  VS.   BRECKINRIDGE. 

vote  in  the  sixteen  counties  comprising  this  district  has  shown  a  ma- 
jority for  the  "  wheel"  or  fanners'  ticket,  when  it  secured  the  Kepubli- 
can  vote.  But  only  once  in  a  State  election  did  it  ever  show  a  Repub- 
lican majority,  and  then  it  was  a  small  one,  of  only  about  1,000  votes, 
when  the  certainty  of  the  result,  it  being  determined  by  the  vote  of  the 
whole  State,  caused  great  apathy  in  many  Democratic  localities.  The 
presumptions,  therefore,  as  usually  calculated,  are  all  in  favor  of  the 
Democrats  and  against  the  Eepublicans. 

Of  the  rumors  and  charges  regarding  the  local  contests  of  this  peo- 
ple we  know  nothing  reliable  beyond  their  official  reports}  and  over 
their  local  affairs  we  have  no  jurisdiction.  Although  in  all  their  pre- 
vious national  elections  no  complaint  has  ever  been  brought  before 
Congress,  and  not  even  a  rumor  of  wrong-doing  has  ever  been  spoken 
or  published,  so  far  as  we  know,  yet  in  this  election  it  was  stated  and 
acknowledjred  upon  every  hand  that  one  of  their  ballot-boxes  had  been 
stolen.  This  was  followed  by  a  deplorable  and  shocking  tragedy,  re- 
sulting in  the  death  of  the  contestant. 

While  the  theft  of  the  ballot  box  did  not,  upon  any  possible  hypoth- 
esis, change  the  result  of  the  election  or  alter  the  right  of  the  Demo- 
cratic candidate  to  the  certificate,  for  the  maximum  voting  strength  of 
the  precinct  was  known  and  not  disputed,  and  the  returns  showed  that 
the  Democrats  had  carried  the  district  by  a  majority  of  149  votes  even 
if  the  Kepublicans  had  obtained  every  vote  in  the  township,  which  they 
did  not  claim  and  did  not  do,  yet  this  event  gave  a  striking  feature  upon 
which  to  base  a  contest,  and  the  two  events  gave  abundant  food  for 
speculation,  crimination,  and  charges. 

Whatever  might  be  the  hasty  or  passionate  view  of  these* matters, 
we  have  had  time  for  reflection.  Whatever  might  be  the  vulgar,  sordid, 
and  unpatriotic  view,  we  know  that  these  questions  and  this  case  in- 
volve the  memory  of  a  gentleman  whose  death  was  deplored  by  good 
men  throughout  the  Union,  and  nowhere  so  deeply  as  by  the  people 
with  whom  he  lived ;  that  they  involve  the  rights  of  a  member  of  this 
House,  a  gentleman  of  long  service  and  honorable  life,  the  representa- 
tive rights,  the  honor  and  the  good  name  of  an  American  constituency, 
and  the  rights,  dignity,  and  honor  of  the  American  House  of  Representa- 
tives itself.  These  considerations,  at  once  tragic,  pathetic,  personal, 
patriotic,  and  rising  to  the  highest  dignity  of  judicial  duty,  would 
move  men,  if  any  power  on  earth  could  do  so,  to  measure  well  their 
course.  The  case  is  exceptional.  The  eyes  of  the  whole  country  have 
been  directed  to  it. 

No  people  have  ever  been  called  upon  to  pass  through  a  more  trying 
ordeal  than  this  people;  no  men  through  one  more  trying  than  these 
men ;  no  committee  and  no  Congress  has  ever  been  put  to  a  severer 
test;  and  to  neglect  the  duty  of  fair  and  impartial  work,  to  stoop  to 
speculate  upon  a  people's  honor,  to  prostitute  the  power,  functions,  and 
dignity  of  the  House,  to  work  palpable  injustice,  and  to  make  merchan- 
dise of  human  blood  is  to  degrade  the  House  in  the  estimation  of  all 
good  men.  This  the  House  seemed  fully  to  appreciate,  judging  by 
the  full  and  accurate  instructions  it  gave  to  the  committee. 

Astonishing  as  it  may  seem,  respecting  a  district  with  the  past  record 
of  this  one,  a  district  where,  with  the  exception  of  two  or  three  counties 
out  of  the  sixteen  that  compose  it,  there  is  hardly  a  saloon  in  it,  yet  the 
notice  of  contest,  with  which  we  will  show  Colonel  Clayton  had  sub- 
stantially nothing  to  do,  was  tilled  with  hundreds  of  statements  and 
charges  of  the  most  serious  character,  covering  every  county  and  per- 
haps every  township  and  precinct  in  it.    This  was  evidence  of  either 


CLAYTON  VS.   BRECKINEIDGE.  715 

the  most  serious  matters  for  the  attention  of  the  committee,  as  respects 
the  methods  of  the  election,  or  of  tbe  most  abandoned  recklessness  of 
statement  as  respects  the  contest.  In  addition  to  this  most  extensive 
ground  and  material  of  the  suspended  contest  there  had  been  extensive 
and  unusual  proceedings  in  the  Federal  court,  all  throwing  light  from 
the  highest  source  upon  the  methods  of  the  election ;  and  the  other 
events  charged  as  "  relating  thereto  or  arising  therefrom,"  in  addition 
to  the  foregoing,  all  made  a  volume  of  work  unequaled  in  extent  as  it 
is  unsurpassed  in  importance  by  any  case  the  House  has  ever  had 
to  deal  with. 

In  regard  to  all  this  the  House  said  "  it  is  of  the  highest  importance 
that  these  matters  be  thoroughly  investigated."  *  »  *  The  commit- 
tee was  instructed  to  "make  a  full  and  thorough  investigation."  *  »  * 
It  was  instructed  "  to  take  and  report  all  the  evidence."  *  *  *  It 
was  instructed  to  "make"  this  investigation  and  to  take  "  all  the  evi- 
dence," not  only  in  regard  to  the  "  case,"  but  also  "  in  regard  to  the 
methods  of  said  election;"  also  in  regard  "to  the  contest;"  and  in  re- 
gard to  "  all  events  relating  thereto  or  arising  therefrom  after  said 
election,"  etc. 

It  will  be  seen  that  all  the  points  enumerated  are  clearly  and 
forcibly  embraced  in  the  positive  instructions  of  the  House.  It  is  known 
also  that  Colonel  Clayton  had  only  just  begun  to  take  his  testimony, 
and  at  only  two  places,  when  he  was  killed,  and  the  contest  was  sus- 
pended. Therefore  the  whole  case  and  all  the  subsequent  events  and 
proceedings,  so  complicated  and  important  and  all  covered  by  the  in- 
structions of  the  House,  fell  to  the  consideration  of  the  committee. 

It  is  something  of  a  guide  in  forming  a  judgment  of  the  thoroughness 
with  which  the  committee  has  discharged  its  duties  in  regard  to  these 
matters  of  so  much  more  than  ordinary  extent  and  complexity,  to  con- 
sider what  time  is  deemed  necessary  and  usually  consumed  in  taking 
testimony  in  ordinary  cases.  The  time  fixed  by  law  for  taking  testi- 
mony in  an  ordinary  election  case  is  ninety  days  (Revised  Statutes 
U.  S.,  sec.  107).  If  exceptional  circumstances  arise  this  is  sometimes 
extended.  All  other  proceedings  connected  with  an  election  case  come 
out  of  other  time.  Ninety  days,  then,  is  the  least  time  provided  by  the 
laws  of  the  United  States  and  the  custom  of  the  House  for  taking  tes- 
timony alone  in  an  ordinary  contested-election  case. 

What  has  the  committee  done  in  this  cause,  so  extensive,  so  com- 
plicated, and  demanding  so  especially  fair  and  careful  treatment! 
The  House  might  have  directed  the  attorneys  for  contestant  and  con- 
testee  to  complete  the  taking  of  testimony  in  the  usual  way,  but  it  did 
not.  Then  the  time  for  taking  this  testimony,  under  the  law  and  under 
universal  usage  would  have  been  ninety  days,  or,  say,  at  the  least, 
eighty-seven  days,  as  three  days  had  already  been  consumed  by  con- 
testant. The  House  could  then  have  provided  otherwise  for  taking 
evidence  in  regard  to  the  other  features  now  embraced  in  the  case. 
But  it  did  not  do  this.  It  considered  this  case  so  important  that  it 
concluded  to  order  a  special  proceeding  in  regard  to  the  whole  matter. 

Thus  instructed  and  empowered,  the  committee  has  taken  evidence 
all  told  not  quite  twelve  days.  It  was  fifteen  days  at  Little  Rock,  it 
had,  say,  eleven  working  days  there,  and  it  took  the  testimony  of  one 
witness  for  the  Government,  herein  Washington,  consuming  perhaps  a 
couple  of  hours.  The  report  of  the  majority  appeared  in  the  press  before 
it  was  submitted  to  the  House,  before  it  was  submitted  to  the  committee, 
before  it  was  authorized  by  the  committee  to  be  commenced  or  it  was 
ordered  to  be  favorable  or  adverse,  and  before  all  the  evidence  called 


71  f»  CLAYTON   VS.    BRECKINRIDGE. 

for  by  the  committee  was  printed  or  submitted  to  the  committee  in  any 
form,  and  this  without  complaint  or  ground  for  complaint  of  delay  in  its 
submission. 

From  these  extraordinary  jiroceedings  the  House  may  judge  of  how 
its  instructions  have  been  carried  out.  It  may  judge  from  this,  and  it 
will  be  called  upon  to  judge  from  proceedings  still  more  extraordinary, 
how  this  case  has  been  handled.  Every  facility  has  been  granted  to 
the  committee.  Every  process  has  been  obeyed,  every  question  has 
been  promptly  and  frankly  answered,  and  every  request  the  majority 
has  made  to  perfect  and  facilitate  their  examinations  and  inquiry  has 
been  fully  granted.  They  have  then  no  denial  or  obstruction  to  com- 
plain of  anywhere. 

It  is  far  otherwise  as  to  them.    They  say  on  page  1 : 

The  fact  that  Norwood,  the  fusion  candidate,  bad  run  ahead  of  Eagle,  Democrat, 
for  goveriior,  by  3,002  votes  in  the  district  led  the  Keiniblicans  to  hope  for  and  the 
Democrats  to  fear  the  result. 

Charges  of  fraud  in  the  September  State  election  were  freely  made,  and  Federal  sn- 
pervisors  were  selected  to  watch  the  election  and  returns  at  tlie  November  election. 

Norwood,  it  is  well  known,  was  a  one-legged  ex  Conlederate  soldier, 
and  uniformly  claimed  to  be  "  a  better  Democrat  than  Eagle."  This, 
however,  did  not  prevent  his  getting  the  Republican  support,  as  his 
general  attitude  was  that  of  an  independent  or  bolter.  This  the  people 
had  a  right  to  do,  and  it  furnishes  no  just  ground  of  complaint  or  sus- 
picion on  the  part  of  the  House.  Nor  do  we  think  his  majority  of  3,002 
votes  in  the  counties  comprising  this  district  is  any  evidence  of  fraud 
on  the  part  of  his  opponents.  Nevertheless  the  fact,  with  character- 
istic logic,  is  cited  by  the  majority  as  reason  for  public  distrust  of  the 
way  these  Democrats  conducted  that  election. 

The  State  election  of  September,  1888,  was  not  simply  a  contest  be- 
tween Norwood  and  Eagle  for  the  position  of  governor ;  it  was  for  the 
election  of  all  the  other  State  officers  except  judges  of  the  supreme 
court.  Members  of  both  branches  of  the  legislature  were  voted  for,  as 
well  as  all  the  country  officers.  This  election  was,  of  course,  solely 
under  State  control.  It  was  for  a  very  large  number  of  positions,  and 
it  embraced  all  those  matters  which  are  nearest  to  the  people.  Under 
the  State  law  the  question  of  temperance  is  also  involved  at  every  State 
election  in  every  county  and  separately  at  every  precinct.  If  license 
is  not  affirmatively  voted,  then  there  is  prohibition.  Nearly  every 
county  and  precinct  in  this  district  of  sixteen  counties  rigidly  enforces 
prohibition.  So  it  will  readily  be  seen  that  at  a  State  election  the  super- 
vision of  the  election  is  the  least  and  the  inducements  to  commit  fraud 
are  the  greatest.  Only  the  State  courts  have  jurisdiction  over  offenses 
in  this  election,  and  if  persons  encourage  fraud  or  crime  for  office  or  ad- 
vantage there  is  always  interested  local  influence  and  power  to  i)rotect 
the  guilty. 

As  a  rule,  candidates  for  all  these  positions  are  selected  on  party 
lines,  and  their  names  placed  on  party  tickets.  Consequently,  if  there 
be  fraud  it  is  likely  to  be  by  the  substitution  of  party  tickets,  or  by 
some  other  mode  that  will  equally  effect  the  whole  list.  The  majority 
report  selects  the  vote  for  governor  as  the  test.  We  abide  by  it.  We 
have  brought  out  these  associated  facts  to  show  how  much  it  proves, 
and  we  think  we  have  clearly  shown  the  character  of  what  it  proves. 
Having  done  this  in  a  somewhat  comprehensive  way  we  pass  over  minor 
details  alluded  to  in  the  majority  report  for  the  present,  at  least,  as 
they  fall  to  the  ground  as  gross  exaggerations  and  perversions  of  inci- 
dents.   Norwood  was  strikingly  successful  in  getting  his  vote  in  this 


CLAYTON   VS.   BRECKINRIDGE.  717 

district,  and  there  is  a  cry  of  fraud.  We  presume  if  he  had  come  out 
behind  the  majority  would  have  cited  that  as  evidence  of  fraud  as 
zealously  as  they  do  the  fact  that  he  came  out  ahead.  We  can  not 
prevent  the  complaint.     We  can  only  show  that  it  is  ridiculous. 

But  they  are  not  going  to  run  these  risks  again,  and  so,  out  of  abun- 
dant caution,  ''  Federal  supervisors  were  selected  to  watch  the  election 
and  returns  at  thei^ovember  election." 

These  supervisors  were  carefully  selected  by  the  Eepublican  man- 
agers, and  the  men  of  their  selection  were  duly  appointed  by  Judge 
Caldwell,  of  the  Federal  bench,  an  able  judge  and  a  zealous  Republi- 
can. The  November  election  was  held.  It  was  under  the  *'  watch  " 
of  these  chosen  officials  of  the  Federal  court  Very  many  oflBcers, 
close  to  the  people,  were  to  be  chosen  before.  Only  national  posi- 
tions, few  in  number  and  remote  from  the  people,  were  voted  for  this 
time.  The  same  State  laws  operating  in  September  were  operating 
now.  No  powerful  local  friends  or  influences  were  here  to  shield  wrong- 
doers as  before.  The  restraining  terrors  of  a  distant  Federal  court,  oc- 
cupied by  an  able,  bold,  aggressive  Republican  judge,  were  now  joined 
to  the  local  courts  under  which  alone  the  September  election  had  been 
conducted,  and  the  Federal  coart  had  its  chosen  "watch"  and  argus 
eyes  at  every  precinct. 

The  November  election  was  held,  and  what  were  the  tidings  and  re- 
sult ?  The  large  vote  polled  by  the  Republicans  shows  there  was  none 
of  the  suppression  of  negro  voters  of  which  we  have  so  much  talk, 
concerning  some  localities,  and  so  little  proof.  Fortunately  no  allega- 
tion of  that  is  made  as  to  this  district,  and  we  haveitever  heard  that  it 
was  ever  made  by  any  man.  As  to  rioting,  a  Mr.  Benjamin,  of  Little 
Rock,  went  to  Morriliton  with  a  detective  the  day  before  the  election  to 
see  about  the  election.  He  did  not  live  in  this  district,  and  a  number  of 
the  people,  being  advised  of  his  coming  in  this  manner,  evidently  thought 
he  was  coming  there  for  bad  and  not  good  purposes.  Giving  way  to 
their  indignation,  most  iuiproperly,  of  course,  they  hooted  him  and 
jostled  him  as  he  alighted  from  the  cars,  and  a  boy,  it  is  supposed,  as 
only  boys  handle  such  things,  struck  hiui  over  the  eye  with  a  shot  from 
what  is  known  as  a  "bean-shooter."  He  was  badly  frightened  and  re- 
ceived a  severe  nervous  shock,  but  his  family  physician  denies  that  he 
was  bruised  in  the  least,  except  the  slight  injury  received  from  the 
"  bean-shooter." 

We  may  refer  to  this  again  further  on,  but  so  far  as  this  election  is 
concerned  the  majority  do  not  allege  nor  attempt  to  i>rove,  nor  has  it 
ever  been  alleged  by  any  one,  unless  perhaps  in  the  notice  of  contest, 
that  the  vote  at  Morriliton  next  day  was  other  than  full  and  fair  and 
honestly  returned.  The  significance  of  this  incident,  then,  is  diflicult 
to  perceive,  though  dwelt  upon  by  the  majority  with  great  stress. 
They  evidently  think  it  indispensable  to  show  that  the  election  at 
Morillton  was  unfair,  though  it  is  universally  admitted  to  have  been 
perfectly  fair,  and  they  do  not  attempt  to  show  that  the  Republican 
vote  fell  off  or  that  a  single  man  or  vote  was  in  any  manner  restrained 
or  interfered  with. 

From  Cleveland  County  it  was  reported  that  a  young  man  named 
Dansby  had  been  drunk  and  disorderly,  but  that  he  was  taken  away 
by  his  personal  friends,  put  to  bed  and  kept  away.  We  will  refer  to 
this  again,  as  the  majority  lays  great  stress  upon  it,  though  the  evi- 
dence shows  that  a  negro  disarmed  him,  and  he  was  no  more  potent 
than  one  drunken  man  would  be  in  a  numerous  community  anywhere. 
That  he  affected  a  single  vote  is  ridiculous  to  assume,  as  shown  by  the  cir- 


718  CLAYTON    VS.   BKECKINRIDGE. 

cumstances  and  evidence;  and  the  majority,  much  as  they  dwell  upon 
the  drunkenness  of  this  young  man,  do  not  attempt  to  carry  it  to  an 
effect  upon  the  vote.  Yet  they  dwell  upon  it  and  seem  unable  to  turn 
it  loose.  If  it  did  not  affect  the  vote  we  can  not  see  that  it  affected  the 
election. 

We  will  consider  the  matter  of  the  Plumtiaerville  box,  the  maximum 
vote  of  which  is  conceded  to  be  accurately  known,  and  hence  its  maxi- 
mum possible  effect  upon  the  election,  later  on.  But  we  affirm  that 
with  the  exception  of  this  box  (Plummerville)  what  we  have  rehited  is 
the  sum  total  of  rumors,  charges,  newspaper  reports  or  reports  of  any 
kind  of  wrong  or  disorder  of  any  kind  on  the  part  of  any  Democrat, 
citizen  or  official,  that  ever  arose  or  was  heard  of  that  have  com.e  to 
our  notice  from  or  about  any  county,  precinct,  or  locality  in  this  district 
until  tbe  19th  day  of  December,  1888,  several  weeks' after  Congress 
met  and  long  after  the  certflcate  was  issued,  when  Judge  John  McClure 
presented  his  remarkable  notice  of  contest.  We  say  his  notice  of  contest, 
for  we  will  show  that  Colonel  Clayton  had  nothing  to  do  with  it,  except 
to  consent  to  it  with  great  reluctance  and  after  long  delay. 

There  was  no  evidence,  then,  ot  any  wrong  affecting  a  single  vote 
except  that  relating  to  the  Plummerville  box.  We  will  show  that 
Colonel  Clayton  knew  of  none;  that  Judge  McClure  knew  of  none, 
and  that  there  was  none.  One  man  was  drunk  in  Cleveland  County, 
the  only  drunken  white  man  ever  alluded  to  by  anybody  or  heard  of  on 
the  day  of  that  election  in  the  district.  One  man  jostled  and  maltreated 
the  night  before  the  election  at  Morrillton,  a  hundred  miles  away,  and 
this  was  the  only  man  struck  a  blow  in  the  district.  The  election  at 
both  places  proceeded  orderly,  and  resulted  fairly,  as  conceded,  and 
yet  the  House  and  the  country  are  led  to  believe  that  it  was  an  election 
of  great  and  general  excitement  and  violence. 

We  deal  at  present  with  the  vote  at  Plummerville,  Howard  Town- 
ship, Conway  County,  and  with  its  effect  on  the  general  result  of  the 
election.  All  the  officers  of  election  say  that  the  total  vote  cast  was  697. 
No  question  is  raised  that  this  was  a  very  full  vote.  Mr.  Breckinridge's 
majority  upon  the  face  of  the  returns  was  846.  If  Colonel  Clayton  had 
received  the  entire  vote  at  Plummerville  Mr.  Breckinridge  would  still 
have  had  a  majority  of  149.  The  Keviublican  supervisor,  Wahl  (p.  335), 
saj'S  the  total  vote  was  697.  But  no  one  pretended  that  all  the  votes 
were  Republican.  Wahl  estimated  at  the  time  (p.  336)  that  the  Demo- 
cratic vote  was  120  or  125.  According  to  Wahl's  smaller  estimate  the 
Eepublican  majority  here  would  have  been  577.  Then  by  the  Republi- 
can estimate  at  the  time  Breckinridge's  majority  in  the  district,  includ- 
ing the  Plummerville  box,  was  369. 

In  the  notice  of  contest  the  total  vote  is  stated  as  697,  and  it  is  there 
claimed  that  the  Democratic  vote  was  only  75.  Of  course  Judge  Mc- 
Clure had  no  such  information,  but  he  did  not  write  the  notice  on  infor- 
mation. But  according  to  this  the  Republican  majority  would  have  been 
547  at  this  box,  leaving  Breckinridge  a  majority  in  the  district  of  299. 
Then  the  committee  polled  the  vote  of  this  township.  It  found  a  total 
Republican  vote,  according  to  the  majority  report  (pp.  29  and  30,)  of  558 
and  a  Democratic  vote  of  125,  making  a  Republican  majority  at  Plum- 
merville of  433.  According  to  the  majority  report,  then,  Breckinridge 
had  a  majority  in  the  district,  including  this  box  of  413. 

These  are  all  the  proofs  and  estimates  of  the  result  of  the  election,  if 
the  vote  of  this  box  (Plummerville)  has  been  included  in  the  returns, 
that  are  of  record.  They  include  the  highest  and  the  lowest  of  the  Re- 
publican estimates,  as  well  as  the  proof  obtained  by  the  majority.    By 


CLAYTON   VS.    BRECKINRIDGE.  719 

every  one  of  tbem  Mr.  Breckinridge  was  elected,  even  if  every  possible 
vote  ill  the  township  had  been  cast  against  him. 

Mr.  Breckinridge  uniformly  declared  that  if  by  any  possible  construc- 
tion the  vote  in  this  box  could  have  changed  the  result  of  the  election 
he  would  not  accept  the  certificate  of  election.  Beyond  this  there  was 
no  other  known  crime  against  the  ballot.  Colonel  Clayton  alleged  no 
other  (p.  848  and  later  in  this  report),  and  Mr.  Breckinridge  and  the 
chairmanof  the  Democratic  committee  at  once  repudiated  the  result  of 
this  wrong  (p.  848),  and  offered  to  prove  the  vote  by  any  one  he  (Colonel 
Clayton)  might  select  (p.  848).  Yet  knowing  all  this,  and  knowing  that 
this  is  the  only  box  stolen  or  alleged  to  have  been  stolen,  and  that  the 
election  was  held  on  the  6th  day  of  November,  1888,  and  Colonel  Clayton 
was  killed  on  the  29th  of  January,  1889,  nevertheless  the  majority  has 
the  hardibood  to  say: 

The  necessity  for  the  eaactment  of  some  laws  which  will  prevent  hallot-box  stealing 
and  murder  from  conferring  a  prima  facie  title  to  a  seat  in  Congress  is  evident  from 
the  result  in  this  contest.  Had  such  laws  been  in  force  as  would  have  prevented 
the  coutestee  from  taking  his  seat  with  such  a  title,  no  one  would  have  attempted  to 
confer  such  title  by  stealing  the  ballot-hox.    (Report,  p.  7.) 

Agaifi  they  say: 

The  certificate  was  obtained  by  the  well-known  larceny  of  a  ballot-box.  (Report, 
p.  14.) 

And  although  they  know  all  the  foregoing,  and  also  that  no  objection 
was  raised  by  Colonel  Clayton  or  by  Judge  McClure  or  by  any  one  to 
the  certificate  being  issued,  nevertheless  the  majority  say,  in  terms  of 
affected  reprobation  and  censure : 

Notwithstanding  the  murder  of  contestant,  the  coutestee  appeared  and  took  his 
seat.     (Majority  Report,  p.  15.) 

The  parts  emphasized  by  italics  are  so  marked  by  us. 

These  extracts  convey  in  clear  and  unmistakable  terms  to  the  House 
and  the  country  the  assertion  that  if  the  vote  of  "  the  box  "  and  if  the 
vote  of  "  a  box  "  which  was  stolen  had  been  included  in  the  returns  then 
those  returns  would  not  have  shown  a  majority  for  .VI r.  Breckinridge; 
but,  upon  the  contrary,  that  they  would  have  shown  a  majority  for 
Colonel  Clayton.  And  also  that  if  Colonel  Clayton  had  not  been  killed 
in  January,  1889,  then  these  events  would  have  been  different  in  Novem- 
ber and  December,  1888.  Such  bold,  illogical,  and  unwarranted  state- 
ments are  an  insult  to  the  intelligence  of  the  j^ouse  to  which  they  are 
addressed  and  are  a  suitable  illustration  of  the  manner  in  which  the 
majority  have  argued  and  treated  this  case  and  in  which  they  expect  to 
get  the  support  of  the  House. 

Now  this  is  not  a  matter  of  opinion.  It  is  a  plain  question  of  fact. 
The  majority  report  deliberately  affirms  to  the^ouse  and  the  country 
that  but  for  the  theft  of  this  box  on  tbe  night  of  November  6,  1888,  and 
the  death  of  Colonel  Clayton  on  January  29,  1889,  the  certificate  of 
election,  which  was  duly  issued  without  protest  on  the  12th  of  December, 
1888,  would  have  been  reversed  from  Breckinridge  to  Clayton. 

There  is  no  room  for  ignorance  here.  Such  boldness  of  misstatement 
in  the  report  is  simply  amazing.  Here  is  the  question,  apart  from  all 
others  that  are  considered  in  turn,  of  who  was  elected  according  to  the 
effect  of  these  three  matters,  first,  the  returns;  second,  the  Plummer- 
ville  vote;  third,  the  death  of  Colonel  Clayton.  The  country  has  been 
made  to  ring  with  the  assertion  that  the  theft  of  this  box  and  the  death 
of  Colonel  Clayton  so  changed  the  face  of  the  returns  as  to  secure  the 
certificate  of  election  for  Breckinridge  instead  of  Clayton.    The  major- 


720  CLAYTON  VS.    BEECKINRIDGE. 

ity,  after  proving  it  to  be  false  and  utterly  impossible  by  every  line  of 
testimony  on  these  topics,  and  after  stating  the  contrar3'^  as  to  the  box 
on  the  first  page  of  their  report,  yet  on  the  subsequent  pages  quoted 
solemnly  avow  it  and  give  their  official  sanction  to  what  they  had  already 
shown  to  be,  in  the  very  nature  ot  the  case,  impossible  and  untrue ;  and 
which  was  originally  coined  and  circulated  as  a  political  lie  to  defame  a 
State  and  its  officials,  to  create  sectional  animosities,  to  excite  the  pre- 
judices and  to  inflame  the  party  passions  of  the  majority  of  this  House 
so  that  this  seat  might  be  declared  vacant  and  the  mind  of  the  North 
prepared  for  the  consummation  of  the  greater  conspiracy  for  the  per- 
petuation of  the  worst  elements  of  the  Republican  party  in  power. 

The  majority  seemingly  loses  all  guide  and  restraint,  and  they  be- 
come as  dangerous  to  their  friends  as  to  their  foes.  On  page  1  of  the 
report  they  say : 

The  contestee  received  the  governor's  certificate  by  a  majority  certified  as  amount- 
iug  to  846,  and  has  not  only  taken  part  in  the  organization  of  the  House,  but  has  dur- 
ing this  contest  tilled  the  exalted  place  of  a  member  of  the  Committee  on  Ways  and 
Means. 

And  again,  on  page  15,  the  majority  say : 

Notwithstanding  the  murder  of  the  contestant,  the  contestee  appeared  and  took 
his  seat. 

These  remarks  are  either  meant  as  personal  attacks  on  Mr.  Breckin- 
ridge, or  they  are  offered  as  reasons  why  he  should  not  have  taken  his 
seat,  should  not  have  taken  part  in  the  organization  of  the  House,  should 
not  have  been  appointed  on  the  Ways  and  Means  Committee,  and  should 
not  now  be  declared  to  have  been  elected.  Perhaps  they  are  meant  as 
all.  At  all  events  these  are  the  only  deductions  that  can  be  made 
from  them,  except  such  as  may  relate  to  their  being  used  at  all  in  con- 
nection with  this  case. 

The  effect  of  a  murder  in  January,  1889,  upon  an  election  held  in 
November,  1888,  has  already  been  discussed.  The  effect  upon  embit- 
tered partisan  minds,  if  Mr.  Breckinridge  had  resigned,  may  be  dis- 
cussed later  on.  But  what  information  did  Mr.  Breckinridge  have  that 
was  not  also  possessed  by  the  House?  The  House  knew  that  Colonel 
Clayton  was  dead,  and  that  he  had,  apparently,  been  intentionally 
killed.  The  House  knew  that  a  ballot-box  had  been  stolen,  and  it  accu- 
rately knew  its  total  contents.  No  one  disputes  either  of  these  facts. 
Who  knew  anything  more  ?  There  was  no  report,  official  or  otherwise, 
of  anything  more  that  could  possibly  affect  a  vote,  except  what  Judge 
McClure  had  alleged  for  Colonel  Clayton  in  the  notice  of  contest. 

The  House  let  Mr.  Breckinridge  participate  in  the  organization.  The 
Speaker  appointed  him  on  the  Ways  and  Means  committee,  and  the 
House  acquiesced  in  it.  The  House  has  let  Mr.  Breckinridge  sit  in  his 
place  and  participate  iully  as  a  member  for  more  than  eight  months. 
The  House  was  Kepublican  when  it  organized  and  it  has  been  Repub- 
lican ever  since  it  organized.  The  Speaker  was  elected  as  a  Republican 
and  he  has  been  a  Republican  ever  since  he  was  elected.  These  are  Re- 
publican acts  and  not  the  acts  of  Mr.  Breckinridge  in  any  sense  except  in 
a  receptive  sense,  and  by  and  with  Repubhcan  consent.  We  do  not  say 
this  to  the  reproach  of  the  Speaker  or  the  House.  Both  did  right, 
as  we  affirm  and  as  they  will  admit.  Then  why  is  this  either  a  reproach 
to  Mr.  Breckinridge,  or  a  reason  why  he  was  not  elected,  or  that  he 
should  now  be  turned  out? 

Why  this  illogical  vindictiveness  now?  Is  it  pertinent  to  the  elec- 
tion, or  is  it  meant  to  unjustly  defame  a  Democrat  and  to  help  pass  the 
force  bill?    This  is  the  line  of  reasoning  and  policy  adopted  by  the 


CLAYTON   VS.   BRECKINRIDGE.  721 

majority;  and  the  House  can  judge  of  the  merits  of  the  cause  which 
needs  it. 

But  let  us  inquire  further  into  the  sources  and  extent  of  this  early 
information.  It  is  pertinent  here  and  it  will  also  throw  light  upon  that 
which  is  to  come.  Nothing  could  more  severely  rebuke  the  policy  of 
proceeding  upon  assumption  than  the  facts  in  this  particular.  Hon.  J. 
M.  Hudson,  although  a  Democrat,  was  the  warm  and  intimate  personal 
friend  of  Colonel  Clayton.  His  high  standing  aud  character  puts  his 
testimony  beyond  question.  The  House  having  gone  Republican  there 
was  some  talk,  on  account  of  the  capital  that  could  be  made  out  of  the 
aflfair  of  the  Plummerville  box,  of  a  contest.  Mr.  Hudson  asked  Col- 
onel Clayton — 

what  he  was  going  to  do?  And  it  waa  a  long  time  before  he  made  any  direct 
answer.  He  told  me  he  didn't  want  to  make  the  contest ;  but  finally  he  told  me  he 
had  concluded  to  make  the  contest  at  tue  earnest  solicitation  of  the  leadens  of  the 
Republican  party.  I  then  said  to  him,  "You  will  have  no  trouble  about  Howard 
township  (Plummerville) ;  you  recollect  my  proposition  ?  "  He  said,  "  Yes,  but  I  will 
tnke  the  testimony  in  the  regular  way,  the  way  they  generally  do  in  Congress  to  take 
testimony.'.'  That  is  the  conversation  I  had  with  him  on  that  particular  subject. 
(Testimony,  p.  848.) 

Tlie  following  letter,  from  Judge  W.  E.  Hemingway,  now  a  member 
of  the  supreme  court  of  Arkansas,  but  who  at  the  time  of  Colonel  Clay- 
ton's death  was  his  law  partner,  throws  conclusive  light  upon  this  sub- 
ject: 

Supreme  Court  of  the  State  of  Arkansas, 

Little  Bock,  March  16,  1890. 
Dear  Major:  I  see  that  some  of  our  Republican  friends  are  intimating  that  the 
contest  for  your  seat  will  be  embarrassed  by  the  loss  of  information  within  the  ex- 
clusive knowledge  of  Colonel  Clayton.  This  I  know  is  not  well  founded.  He  had  no 
definite  information  of  facts  that  would  have  tended  to  change  the  result  outside  of 
the  Plummerville  box,  of  which  everybody  was  advised.  He  so  told  me  the  evening 
before  he  left  home  to  begin  taking  his  depositions;  as  he  had  taken  no  depositions 
elsewhere,  he  could  have  acquired  no  other  information  that  was  definite  or  satisfac- 
tory to  him.  Although  his  conversation  was  contidentir.l,  it  does  not  seem  to  me  im- 
proper that  I  write  you  of  it.  I  do  not  know  that  it  will  bo  material,  but  you  are  at 
liberty  to  consider  it  and  make  use  of  it  if  yoa  think  it  material. 
Yours,  truly, 

W.  E.  Hemingway. 
Hon.  C.  E.  Breckinridge,  Washington,  D.  C. 

On  the  first  page  of  the  bri'ef  (committee  print)  of  Judge  McClure, 
counsel  for  Colonel  Clayton,  he  denies  that  he  had  anything  to  do  with 
"  inducing  John  M.  Clayton  to  institute  a  contest,"  *  *  *.  That  is 
not  the  question.  That  point  was  not  raised  and  it  is  of  no  consequence 
in  any  sense.  Thesole  question  in  this  connection  was  and  is  what  was 
known  beside  the  affair  of  the  Plummerville  box,  and  who  knew  it,  what 
was  asserted ,  and  by  whom  asserted ,  aud  wh  at  credence  properly  attached 
thereto  ?  That  the  numberless  charges  were  neither  aflirmed  nor  believed 
by  John  M.  Clayton  we  think  is  conclusively  shown.  That  they  are 
the  fictions  of  his  counsel  is,  in  our  opinion,  being  shown  with  equal  clear- 
ness. Certain  it  is  that  neither  Mr.  Breckinridge,  nor  the  Kepublican 
House,  nor  the  Republican  Speaker  had  any  other  basis  than  his  affirma- 
tion to  go  upon,  and  this  has  not  been  deemed  trustworthy  by  any  of 
them.  Yet  all  of  them  come  under  the  reckless  criticism  of  the  majority 
of  this  committee,  who  in  the  same  spirit  have  treated  all  the  other 
features  of  this  case. 

But  there  has  been  another  test  to  all  this  and  to  all  the  majority  say 
of  the  result  of  this  election,  and  that  is  a  most  extraordinary  series  of 
trials  before  the  Federal  court.  While  this  contest  was  being  brewed 
H.  Mis.  137 46 


722  CLAYTON    VS.    BRECKINRIDGE. 

by  the  "  leaders  of  the  Eepublican  party,"  careful  inquiry  was  made, 
not  only  into  the  single  case  of  "  drunk  and  disorderly  "  conduct  of 
young  Dansby,  and  into  the  offense  against  the  ballot-box  at  Plummer- 
ville ;  but  this  form  of  inquiry*  was  also  made  into  all  the  little  omissions 
or  breaches  of  the  many  technical  and  inconsequential  rules  of  proceed- 
ings in  the  conduct  of  the  election  by  officials.  Our  present  Federal 
election  laws,  not  to  speak  of  those  proposed,  are  very  comprehensive 
and  quite  intricate. 

In  an  agricultural  district  like  this  one,  which  is  composed  of  sixteen 
counties,  many  of  the  election  officials  are  necessarily  plain  men,  not 
skilled  in  the  law-,  and  it  is  not  infrequent  in  every  State  that  such  men 
do  not  do  everything  in  precisely  the  waj^  and  at  precisely  the  time  laid 
down  in  the  minute  manuel  of  the  laws.  But  true  as  this  is  this  dis- 
trict had  gone  through  two  previous  Congressional  elections,  this  being 
the  third  one  since  its  formation,  and  no  occasion  had  ever  arisen  be- 
fore to  indict  any  one.  Judge  Caldwell,  a  strong  Republican,  was  on 
the  Federal  bench  all  the  time,  and  the  first  election  was  under  a  Re- 
publican administration  (Arthur's),  and  the  present  Republican  United 
States  district  attorney,  Mr.  Waters,  was  the  United  States  district 
attorney  then. 

In  the  Plummerville  case  in  this  election  there  is  no  allegation  that 
the  election  was  not  conducted  honestly.  All  the  judges  and  clerks 
of  election  at  that  box  were  Democrats,  and  the  box  was  stolen  by  other 
and  unknown  parties.  Bnf,  now  people  were  indicted  by  wholesale. 
It  is  well  known  that  indictments  are  easy  to  procure  from  a  pliant  or 
conscientious  grand  jury  if  men  can  be  persuaded  to  make  sworn  alle- 
gations, whether  they  be  true  or  false.  At  all  events  the  grand  jury 
was  secured  just  as  every  grand  jury  in  such  cases  is.  They  showed 
that  they  were  willing,  pliant,  or  conscientious,  it  matters  not  which, 
so  far  as  the  fact  of  willingness  to  indict  is  concerned.  There  was  no 
fear  or  hinderance  as  to  allegations  or  witnesses.  The  only  question, 
then,  was  the  question  of  innocence  or  guilt. 

But  to  further  show  the  zeal  of  the  officials,  the  jurors,  and  all  peo- 
ple, regardless  of  party,  to  make  these  tests  full  and  ample,  covering  as 
they  did  all  things  imaginable  and  all  men  in  the  district  against  whom 
rumor,  slander,  or  just  suspicion  pointed  or  could  be  made  to  point,  we 
quote  the  following  from  the  brief  of  Judge  McClure,  page  4,  committee 
print: 

Every  one  of  tbe  prosecutions  against  persons  in  Conway  and  Woodruff  Counties, 
except  the  persons  who  were  charged  with  the  theft  of  the  Howard  Township  box, 
and  those  who  were  charged  with  a  conspiracy  to  injure  Wahl,  a  United  States  wit- 
ness, was  instituted  before  a  United  States  commissioner,  under  the  direction  and 
supervision  of  a  Democratic  district  attorney,  at  a  time  when  the  gentleman's  present 
counsel  was  Attorney-General  of  the  United  States.  In  every  one  of  the  cases  so  in- 
stituted tbe  defendants  had  been  bound  over  to  answer,  by  the  action  of  a  Democratic 
officer,  before  I  was  employed  to  prosecute. 

Again  he  says,  on  the  same  page : 

Out  of  all  the  cases  instituted  in  the  Second  district,  and  of  which  so  much  com- 
plaint is  made,  two  cases,  and  only  two,  were  instituted  under  Republican  officers. 
What  amount  of  money  was  spent  in  the  prosecution  of  these  cases,  I  am  not  prepared 
to  say.    Whatever  sum  it  may  be,  it  is  to  be  hoiked  it  will  be  as  bread  cast  on  the  waters. 

These  cases,  as  we  have  stated,  extended  over  many  weeks,  consum- 
ing a  great  part  of  two  terms  of  the  court,  the  spring  and  fall  term  of 
1889.  Judge  Caldwell,  now  circuit  judge  of  the  United  States  conrt; 
Judge  Brewer,  now  of  the  United  States  Supreme  Court,  and  Judge 
Shiros,  of  the  United  States  district  court  of  Iowa,  all  presided  in  the 
course  of  the  trials  of  these  cases.     When  the  present  administration 


CLAYTON    VS.    BRECKINRIDGE.  723 

came  into  power  and  it  was  intimated  that  the  Democratic  marshal  and 
the  Democratic  United  States  district  attorney,  whose  fidelity  and  zeal 
the  boastful  allusion  to  the  prosecutions  by  Judge  McOlure  is  ample 
assurance,  would  not  be  earnest  in  further  prosecution,  they  resigned, 
and  the  entire  machinery  was  promptly  turned  over  to  the  Republicans. 
The  trials  all  came  on  then  under  these  Eepublican  authorities. 

The  former  Republican  district  attorney,  Charles  C.  Waters,  was  in 
oflBce  again.  He  had  an  assistant  in  S.  E.  Allen,  a  prominent  Repub- 
lican attorney,  and  Judge  John  McClure  was  made  "  special  district  at- 
torney" (page  578,  etseq.  testimony).  Rewards  were  offered  and  paid 
for  testimony  (page  179,  testimony) ;  the  inducements  of  mileage  and 
Federal  fees  was  of  moment  to  the  blacks,  and  it  is  alleged  negroes  filled 
the  yard  and  building  of  the  Federal  court  as  if  an  army  were  gathered. 
It  Is  stated  that  these  vast  proceedings  must  have  cost  not  less  than  $80,- 
000,  and  Judge  McClure  in  alluding  to  this  feature,  in  an  extract  quoted, 
refrains  from  an  estimate.  He  is  "not  prepared  to  say,"  yet  no  man  is 
in  better  position  to  know  than  he.  His  attention  had  long  been  called 
to  it.  A  cursory  glance  at  the  reported  expenditures  of  the  Depart- 
ment of  Justice  and  an  examination  of  "  costs"  as  assessed  in  the  cases 
(page  588,  etseq.  testimony)  now  show  that  far  the  greater  part  of  these 
great  outlays  did  not  come  out  of  the  Federal  Treasury.  They  could 
only  have  been  met,  then,  out  of  some  other  funds  not  indicated  by  the 
testimony. 

We  are  not  complaining  of  the  exhaustiveness  or  character  of  these 
vast  proceedings.  We  are  simply  calling  attention  to  the  facts.  These 
evidently  were  not  political  trials,  with  the  ordinary  purpose  to  punish 
election  crimes,  with  the  exception  of  course  of  what  might  have  been 
reasonably  suspected  of  the  parties  charged,  but  acquitted,  of  the  theft 
of  the  box  at  Plummerville,  and  the  same  may  be  said  of  the  parties 
accused  and  acquitted  of  shooting  Supervisor  Wahl  some  time  after  the 
election.  It  is  true  that  no  election  was  held  at  two  remote  precincts 
in  the  overflowed  region  of  the  White  and  Mississippi  River  bottom, 
one  a  Democratic  precinct  and  one  Republican.  The  day  was  cold, 
wet,  and  raining  hard.  The  country  low,  flat,  and  muddy.  'So  election 
was  held  at  these  two  remote  points.  The  officers  admitted  it,  and  it 
had  been  this  way  before  under  such  circumstances,  and  the  court, 
with  a  full  knowledge  of  the  facts  and  motives,  fined  them,  on  their  own 
frank  confession,  $10  each. 

But  these  are  not  the  precincts  nor  are  these  the  cases  where  the 
votes  are  to  come  or  go  that  are  to  decide  this  case,  even  upon  the 
most  extreme  theories  advanced  by  the  majority. 

We  make  no  mistake  about  the  results  of  trials  upon  criminal  accusa- 
tion in  their  application  in  a  civil  case  involving  the  same  issue  as  to 
the  result  produced  by  the  alleged  acts.  We  know  that  the  doctrine  of 
doubt  properly  figures  more  largely  in  the  former  than  in  the  latter 
case.  We  know  also  that  the  power  of  the  House  in  a  question  of  the 
election  of  one  of  its  members  is,  under  the  Constitution,  exclusive. 
Hence  to  the  House,  in  point  of  fact,  all  evidence  is  simply  persuasive. 
These,  however,  were  not  ordinary  trials.  They  were  political  and  party 
prosecutions  in  the  broadest  and  most  comprehensive  sense,  manifestly 
originated  by  a  party,  and  for  a  party,  and  unexampled  in  the  efforts  to 
prove  that  which  would  unseat  a  Democrat  and  help  pass  a  force  bill. 
Democratic  officials  gave  due  credence  to  allegations  and  secured  indict- 
ments. The  grand  jury,  before  Cleveland  went  out  of  office,  gave  due  cre- 
dence to  allegations,  and  the  willingness  of  the  juries  to  convict,  as  well 
as  to  indict,  is  a  subject  of  boasting  by  Judge  McClure  (his  brief,  p.  4, 


724  CLAYTON    VS.    BRECKINRIDGE. 

committee  print)  and  of  exultation  by  the  majority  report,  which  says, 
pages  9  and  11 : 

All  of  the  Woodruff  County  officials  who  were  indicted  were  convited.  In  fact,  all 
the  persons  who  were  indicted  were  convicted,  except  the  persons  indicted  for  the 
crime  against  Wahl  and  those  for  the  stealing  of  the  PlammeryiUe  box. 

And 

We  have  given  the  list  of  cases  so  confidently  relied  on  as  an  adjudication,  and  it 
appears  that  most  of  these  indictments  in  the  United  States  courts  resultedin  convic- 
tions. 

The  trouble  with  the  majority  is  that  it  is  not  uniform  in  its  practice 
or  in  its  use  of  evidence. 

If  convictions  in  the  Federal  court  are  potential  and  adequate  as  evi- 
dence in  this  case,  why  are  not  acquittals  in  the  same  court  and  by  the 
same  juries  equally  potential  and  adequate  ?  No  one  ever  denied  that 
there  were  convictions ;  but  convictions  of  what  ?  conviction  of  one  man 
being  drunk  and  disorderly.  He  was  disorderly  to  a  supervisor,  but 
also  to  others.  He  was  taken  away.  Was  this  a  calm,  cool,  premeditated 
plot  against  the  ballot?  No.  Did  it  affect  a  single  vote?  No,  It 
is  most  improbably  alleged  that  one  voter  was  scared,  but  the  fellow 
was  disarmed  by  a  negro  and  laughed  at,  taken  away  and  put  to  bed. 
(Testimony,  pp.  178,  184,  631,  et  seq.) 

A  supervisor  was  told  by  a  sheriff  that  his  place  was  on  the  outside, 
thinking  his  duty  was  to  keep  order.  The  matter  was  referred  by  the 
sheriff  by  telegraph  to  the  United  States  judge — Judge  Caldwell,  a 
strong  Eepublican.  Judge  Caldwell  was  absent,  and  the  telegram  was 
replied  to  by  Mr.  Cooper,  the  chairman  of  the  Republican  State  com- 
mittee (Testimony,  p.  663),  and  Mr.  Cooper's  telegram  was  promptly 
obeyed.  In  a  sense  and  in  fact  the  sheriff  was  guilty.  He  acted  hon- 
estly and  never  denied  anything.  He  was  convicted  and  fined  $10. 
Was  this  a  plot  against  the  ballot  ?  Did  it,  could  it  possibly  affect  a 
vote  ?  Election  officers  of  both  parties  were  in  the  room  or  by  the  box. 
The  supervisor  promptly  returned  and  did  as  he  pleased.  How  could 
there  be  any  foul  play  or  intention  of  it  here  ?  The  testimony  is  singu- 
larly straightforward  and  from  men  of  undoubted  honesty. 

The  point  is  that  every  Democrat  was,  by  these  same  juries  of  the 
Federal  court,  acquitted  of  any  offense  and  of  every  charge  that  in- 
volved, directly  or  indirectly,  the  corrupting  of  the  ballot,  or  affecting  the 
free  casting,  fair  counting,  and  honest  returning  of  the  vote.  While 
convicted  on  some  they  are  acquitted  on  these  counts.  Mr.  Breckin- 
ridge, in  his  argument  before  the  committee,  distinctly  asked  Judge 
McClure  to  name  any  instance,  when  his  time  came  to  close  the  argu- 
ment, in  which  the  finding  of  the  court  was  not  that  the  vote  was  counted 
and  returned  as  cast,  and  he  did  not  attempt  to  name  one.  Among 
other  comments  he  used  the  following  language : 

There  were  various  charges.  Men  were  charged  with  technical  violations  of  law 
and  with  consequential  violations  of  law.  Judge  Caldwell  took  the  position  that 
these  trials  were  not  simply  to  punish  crime  affecting  the  ballot,  but  as  educational 
to  the  general  masses  upon  the  technical  ministerial  features.  I  referred  specifically 
to  those  charges  or  counts  affecting  the  integrity  of  the  vote,  and  I  challenge  the 
gentleman  to  produce  to  this  committee  a  single  instance  where  a  man  in  all  those 
proceedings  was  not  vindicated  by  acquittal  of  any  act  affecting  or  intending  to  af- 
fect a  single  vote.  The  juries  convicted  the  accused  of  such  offenses  as  they  were 
guilty  of,  and  exposed  them  to  the  severest  penalties  where  no  real  wrong  had  been 
either  contemplated  or  done,  showing  they  were  willing  to  convict  them  even  where 
they  are  not  guilty  of  any  real  wrong.  I  say  the  gentleman  can  not  find  a  single  in- 
,8tance  where  a  charge  affecting  the  integrity  of  the  ballot  was  not  disTnissed  by  the 
judge  from  the  bench  as  being  untenable,  or  instructions  given  to  the  jury  to  ac(£uit, 
or  withdrawn  by  himself;  not  one.     Therefore  it  is  not  a  conviction  of  a  technicality 


CLAYTON   VS.    BEECKINRIDGE.  725 

that  does  not  affect  the  integrity  of  the  vote  that  I  spoke  of  as  a  vindication,  as  he 
states ;  but  it  is  the  action  I  have  cited  and  his  own  action  upon  all  those  charges 
which  affect  the  integrity  of  the  vote. 

The  gentleman  dwelt  with  great  stress  yesterday  about  feloniously  doiug  so  and  so. 
He  did  not  reveal  the  real  act  or  the  penalty  until  asked.  Feloniously  doing  what  ? 
Why,  going  to  supper  before  counting  the  vote.  It  is  denounced  in  the  law,  and  I 
suppose  that  is  the  usual  phraseology  that  is  used.  The  law  does  not  permit  them 
to  separate,  but  he  can  not  say,  and  he  does  not,  that  they  separated  under  circum- 
stances or  in  a  way  that  could  possibly  contaminate  the  ballot.  Yon  know,  gentle- 
men, perfectly  well,  that  at  these  country  precincts  these  mere  ministerial  or  technical 
features  and  modes  are  frequently  overlooked  by  the  people.  They  make  mistakes 
some  times  by  thinking  the  Federal  supervisor  is  the  man  to  preserve  order,  but  these 
disputed  precincts  were  all  held  under  the  supervision  of  both  parties,  auS  there  is 
nothing  to  justify  an  attack  upon  the  result ;  a  mere  mistake  of  that  sovt  can  not  hold 
against  the  integrity  of  the  result.  The  case  where  that  view  was  held  of  a  super- 
visor by  the  sheriff  at  a  Woodruff  County  precinct,  what  did  the  sheriff  do  ?  He  tele- 
graphed instantly  for  instructions  to  Judge  Caldwell,  the  Republican  United  States 
judge,  or  rather  for  a  statement  of  the  law,  and  he  at  once  obeyed  the  Republican 
reply. 

Not  only,  then,  in  every  case  affecting  or  calling  in  question  a  single  vote  cast,  ex- 
cepting of  course  the  Plummerville  box,  have  you  the  sworn  statement  in  every  case 
of  the  election  officials  of  both  parties  that  the  election  was  fair,  peaceful,  and  honest, 
and  that  the  vote  was  counted  and  returned  just  as  it  was  cast;  but  you  have  in  ad- 
dition to  this  the  finding  of  the  Federal  court,  covering  every  one  of  these  precincts. 
The  court  had  the  ballots  and  poll-books,  some  of  them  I  know,  and  I  know  it  had 
access  to  all  of  them.  I  asked  Judge  Rose,  of  counsel  for  the  defense,  to  see  to  it  that 
the  court  had  a  full  and  fair  offer  of  all  the  records,  and  you  see  in  the  testimony  where 
they  called  at  least  for  some  of  them  and  had  them  in  possession.  The  question  was, 
was  the  vote  cast  as  counted  and  returned,  and  was  it  counted  and  returned  as  cast? 
In  every  instance  the  court  said  it  was. 

No  reply  was  made  to  this  and  none  to  the  special  request,  and  the 
House  is  referred  to  the  court  records,  page  588  et  seq.,  testimony. 

Attention  is  called  to  an  error  in  the  index  that  might  mislead  upon 
a  hasty  examination.  It  is  stated  in  the  index,  page  876,  that  Martin, 
Hignight,  and  Antony  are  convicted  of  making  a  false  certificate  of 
election.  Reference  to  pages  603  and  607  shows  that  they  were  acquitted 
of  all  charges  except  the  one  involving  their  going  to  supper  before  cast- 
ing up  the  vote.  Two  judges  were  Democrats,  one  a  Eepublican,  and 
the  Republican  supervisor  staid  with  the  judge  that  had  the  box  and 
with  the  box  all  the  time. 

The  majority  indulges  in  the  following  line  of  reasoning : 

Reed,  Lucas,  and  Blakely  were  indicted  for  interfering  with  election  officers. 
Their  acquittal  does  not  show  that  the  ballot-box  was  not  stolen. 

Of  course  not.  But,  does  it  not  show  quite  conclusively  that  the 
charge  that  they  intefered  with  election  officers  is  not  true  ?  Again 
they  say : 

Reed,  Ward,  Bentley,  W.  P.  Wells,  Woods,  Heard,  and  Thad.  R.  Wells  were  in- 
dicted for  stealing  the  Plummerville  ballot-box,  and  were  all  acquitted.  But  it  is 
undisputed  that  the  box  was  in  fact  stolen  by  somebody. 

Certainly  it  is.  Nobody  denies  that  the  Plummerville  box  was  stolen. 
But  is  not  this  very  good  evidence  that  these  men  did  not  steal  it  ? 
There  must  be  a  stop  somewhere.  What  more  evidence  do  you  want  ? 
What  better  can  you  have  ?  Some  of  these  men  at  least  appeared  before 
the  subcommittee  at  Little  Rock.  They  could  have  plead  acquittal 
and  refused  to  testify  on  this  subject,  but  they  did  not.  They  answered 
every  question  frankly  and  promptly;  they  were  asked  for  specimens 
of  their  writing.  They  wrote  out  at  once  every  dictation  given  to  them. 
It  is  perfectly  plain  from  this  line  of  reasoning  that  the  majority  will 
accept  as  good  only  that  evidence  which  tends  to  prove  what  they  want 
to  prove,  and  reject  any,  however  good,  which  opposes  their  wishes  and 
intentions. 


726  CLAYTON    VS.    BRECKINRIDGE. 

But  take  the  cases  now  of  the  election  oflScers  at  the  various  Wood- 
ruff County  precints,  and  these  embrace  every  vote  except  that  of  the 
Plummerville  box  that  the  majority  passes  judgment  upon.  In  every 
instance  the  election  ofiicials,  including  the  supervisors,  were  of  both 
parties.  In  no  instance  do  any  of  Ibem  fail  to  certify  officially  and  with- 
out complaint  tbat  the  votes  and  returns  were  fair  in  every  way.  A  lot 
of  charges  were  gotten  up ;  a  lot  of  indictments  are  secured  ;  "  the  lead- 
ers of  the  Ilepublican  party  "  have  brought  great  inducements  and  press- 
ure to  bear  after  the  election,  and  after  the  returns  are  all  in.  They  are 
going  to  override  Colonel  Clayton's  convictions  by  their  "  earnest  so- 
licitations." 

We  make  no  com[)laint  of  this.  In  one  sense  this  is  their  right.  These 
officials  are  charged  with  all  manner  of  offenses,  great  and  small.  One 
or  two  errors  and  misunderstandings  as  to  the  exact  meaning  of  the 
law  are  found  as  to  some  of  them.  The  prosecutions  are  vigorous  and 
they  are  fined  $10  each  and  costs,  which  are  somehow  vastly  below 
the  actual  outlay.  Most  of  the  outlay  in  the  prosecution  is  concealed. 
No  one  is  punished  for  his  unintentional  and  inconsequential  violation 
of  law  more  than  this,  and  no  other  convictions  of  these  men  were  had. 
What  does  this  show?  In  this  case,  under  the  extraordinary  circum- 
stances we  have  related,  what  does  it  conclusively  show? 

Colonel  Clayton  had  been  killed,  for  the  purpose,  as  charged,  of 
"quieting  a  contest."  This  is  the  theory  of  the  murder  (good  enough 
if  sustained  by  evidence)  of  those  who  think  that  such  an  act  would 
commend  men,  already  indicted,  to  the  clemency  of  the  Federal  court. 
This  is  the  theory  ot  those  who  think  it  would  close  the  investigation 
and  secure  the  good  graces  of  a  Republican  House,  already  elected. 
But  under  the  fierce  heat  engendered  by  this  sad  event  all  of  these  men 
were  still  acquitted  of  any  corrupt  dealing  with  the  ballots  or  with  the 
returns.  This  certainly  does  not  show  that  Colonel  Clayton  was  not 
killed.  Nor  does  it  show  that  the  Plummerville  box  was  not  stolen,  for 
it  is  not  related  to  either  of  those  events.  We  know  that  both  of  these 
events  occurred.  Neither  does  it  prove  who  killed  Colonel  Clayton 
nor  who  stole  the  Plummerville  box,  two  eventsremote  from  this  county 
and  in  no  wise  connected  with  the  charges  tested  by  the  trials  of  these 
election  officers.  This  does  show,  however,  and  under  all  the  circum- 
stances of  the  case  it  conclusively  shows  that  these  officials  did  not  do 
those  things  of  which  they  were  acquitted. 

These  charges  were  presented  in  every  form  and  phase  that  ingenuity 
could  suggest.  It  is  all  given  in  the  records  of  the  court,  page  574  et 
seq.  of  the  testimony. 

Then  what  follows  ?  It  is  not  asserted  or  pretended  that  any  other 
persons  had  a  chance  to  stuff  these  ballot-boxes  or  to  falsify  these 
returns  except  the  election  officials.  If  they  did  not  do  this,  then  nobody 
did  it;  and  the  judgment  of  the  court,  the  unanimous  verdict  of  juries 
composed  of  Republicans  as  well  as  Democrats,  a  judicial  outfit  which 
was  wholly  under  Republican  control,  was  that  these  votes  were  cast  as 
t\iey  were  counted,  and  that  they  were  honestly  counted  and  honestly 
returned.  This  all  took  place  also  before  Mr.  Breckinridge  took  his 
seat  in  the  House. 

Whatever  may  bo  said  of  these  being  criminal  cases  and  of  the 
greater  operation  of  doubt  in  favor  of  the  accused  in  criminal  than  in 
civil  cases,  is  fully  and  fairly  offset  by  the  extraordinary  circumstances 
attending  these  trials — all  being  adver.se  to  the  accused — and  the  com- 
ple'.e failure  of  Judge  McClure,  his  assistants,  and  "the  leaders  of  the 
Republican  party"  to  cast  a  shadow  of  doubt  or  discredit  ujion  the 
ballot  at  these  boxes. 


CLAYTON   VS.    BEECKINRIDGB.  727 

These  proceedings,  we  repeat,  embrace  every  box  and  every  vote 
that  the  committee  takes  from  or  counts  adversely^  to  Mr.  Breckinridge, 
except  that  of  the  Plummerville  (Howard  Township)  box,  which,  after 
proof,  left  him  a  majority,  by  the  figures  of  the  committee  itself,  of 
413  in  the  district.  Therefore,  these  two  heads,  the  Woodruff  County 
boxes  and  the  Plummerville  box,  cover  the  whole  case  as  presented  by 
the  majority  as  respects  votes. 

It  is  the  returns  from  these  boxes  that  they  overthrow.  They  over- 
throw them  in  the  face  of  these  certificates  from  officials  of  both  politi- 
cal parties,  and  in  the  face  of  the  findings,  under  even  the  exceptional 
circumstances  stated,  of  the  Federal  court.  The  supreme  purpose  was 
to  get  convictions  of  a  character  that  would  give  them  some  color 
under  which  to  claim  votes. 

But  they  signally  failed  ;  and  now,  after  these  extraordinary  cases  and 
proceedings,  the  committee  says,  when  it  suits  them,  that  this  is  all  of 
no  consequence  or  moment;  it  is  no  proof;  and  at  the  same  time  they  use 
events  and  convictions  that  have  no  earthly  relation  to  the  vote  as  evi- 
dence of  the  highest  consequence. 

Before  commenting  on  other  features  of  this  case  we  wish  to  remark 
that  we  are  not  to  be  understood  as  objecting  to  those  cases  which 
looked  to  punishment  for  the  crime  of  stealing  the  Plummerville  box,  or 
for  any  other  crime.  Democrats  as  well  as  Republicans  offered  a  reward 
for  the  arrest  and  conviction  of  those  unknown  parties  (i)age869,  testi- 
mony). The  acquittal  of  those  tried  by  the  Federal  court  for  this  crime, 
and  the  non-arrest  by  the  officers  of  the  same  court  of  any  others,  is  suffi- 
cient refutation  of  the  complaint  of  the  majority  of  no  one  being  pun- 
ished for  it  by  the  State.  Judge  W.  H.  H.  Clayton  says  on  page  432 
of  the  testimony : 

The  Arkansas  Gazette,  which  was  then  under  a  different  man  agement  than  it  is 
now,  was  standing  very  nobly  upon  the  right  side  of  the  wall.     *     »     » 

The  Gazette  at  that  time,  in  its  issue  of  March  3,  1889,  used  this  lan- 
guage : 

A  reward  of  $1,200  is  outstanding  for  the  arrest  and  conviction  of  the  ballot-box 
thieves,  and  the  rewards  for  the  conviction  of  tlie  assassins  aggregate  about  $10,000. 
If  these  are  not  sufficient  to  punish  these  crimes  it  is  doubtful  if  any  sum  of  money 
can  do  it.     There  is  danger  in  over  stimulus. 

Neither  have  we  any  objection  to  make  to  indictments  or  convictions 
for  errors  or  omissions  that  contravene  the  law,  or  to  proceedings  upon 
any  reasonable  grounds  of  belief  of  guilt  of  any  kind.  We  assent  to 
the  rod  of  the  court  being  used,  with  tempered  severity,  even  in  an 
educational  way,  to  rebuke  ignorance,  to  check  carelessness,  and  thus 
to  prevent  growth  to  a  more  serious  condition.  Nor  are  we  passing  any 
criticism  upon  the  able  and  honorable  court,  which,  although  it  pun- 
nished  a  drunken  and  disorderly  Democrat  (Dansby),  whose  conduct  did 
not  affect  a  vote,  with  a  fine  of  fifty  times  the  amount  imposed  upon 
the  Republican  judges  of  Richland  Township,  who  confessed  to  know- 
ingly permitting  illegal  voting,  yet  they  imposed  imnishment  upon  the 
guilty,  and  they  fairly  earned  for  themselves  and  their  juries  full  faith 
in  the  innocence  of  those  who  were  acquitted,  and  in  all  that  logically 
and  inevitably  follows  therefrom. 

What  we  do  complain  of  is,  the  majority  of  the  committee,  after  all 
these  efforts  by  their  party  and  by  the  Federal  court,  and  the  com- 
plete failure  of  every  feature  as  alluded  to  instituted  to  get.  votes, 
still  coming  hero  and  saying  this  is  all  of  no  force  or  effect,  not  entitled 
to  credence,  and  at  the  same  time  making  up  the  greater  part  of  their 


728  CLAYTON    VS.    BRECKINRIDGE. 

report  in  support  of  their  case  in  erroneous  statements  of  what  occurred 
in  tlie  State  and  apart  from  the  election,  even  if  it  were  as  they  gave  it, 
and  in  erroneous  statements  in  support  of  their  case  of  the  findings  of  the 
very  court  they  elsewhere  reject. 

The  majority  report  asserts  that  there  were  frauds  in  the  State  elec- 
tion in  Conway  County,  which  the  committee  has  not  attempted  to  prove. 
It  appears  in  the  testimony  that  the  Kepublicans  had  two  tickets  then 
in  the  field  in  that  county,  and  the  result  was  the  Democrats  carried  the 
county.  The  Democrats  estimate  the  county  at  from  300  to  350  Repub- 
lican majority  if  they  are  united  and  there  is  a  full  vote.  In  the  State 
election  of  1886,  Cunningham,  a  Union.  Labor  candidate,  got  158  votes 
in  Conway  County,  mostly  Democrats,  and  that  enabled  Gregg,  theRe- 
l)ublican  candidate  for  governor  to  carry  the  county  by  401  votes  more 
than  were  cast  for  Eagle,  the  Democratic  candidate.  In  1888  it  wa« 
Norwood,  Union  Labor  and  Fusion,  claiming  to  be  a  Democrat,  and 
Eagle,  the  regular  Democratic  candidate  for  governor,  with  a  bad  split 
in  the  Republican  party  for  the  local  oflBces.  This  time  Eagle,  the 
Democrat,  carried  the  county  by  a  majority  of  475.  This  obviously 
very  reasonable  result  is  called  a  fraud  without  adducing  any  proof. 
Then,  in  the  Congressional  election  of  1888 — 

Vote*. 

Clayton  got 1,119 

Add  his  vote  in  Plammerville  box 558 

Total 1,677 

Breckinridge  got 1,337 

Add  his  Plummerville  vote 125 

Total 1,462 

Take  this  from  Clayton's  vote 1,462 

And  Clayton  carries  the  county  by 215 

Breckinridge,  with  a  united  Democratic  party,  and  when  fraud  is 
charged,  gets  only  37  more  votes  than  Hughes  got  with  a  divided  party 
in  1886,  when  no  fraud  is  charged.  And  he  gets  506  less  votes  than 
Eagle  got  with  a  divided  and  rent  Republican  party  in  1888,  and  yet 
fraud  is  charged  now  also  against  the  Democrats.  Clayton  gets  in  1888 
184  more  votes  than  his  party  was  able  to  run  up  for  their  fusion  can- 
didate, Norwood. 

We  now  invite  attention  to  some  general  facts  and  features  about 
elections  in  Woodruff  Couuty.  There  is  no  charge  of  fraud,  nor  has 
there  ever  been  in  the  State  election  of  1886.  In  that  election  the  vote 
for  governor  in  the  county  was : 

Eagle,  Democrat 1,289 

Gregg,  Republican 1, 109 

Democratic  majority  in  1886 180 

But  Cunningham,  Union  Labor,  drew  off  53  votes,  perhaps  every  one 
of  them  Democratic  on  a  straight  party  issue.  Add  this  53  and  the 
real  Democratic  majority,  with  no  charge  of  fraud  anywhere,  is  233  in 
Woodruff  County  in  1886. 

We  know  of  no  charge  of  fraud  in  this  county  in  the  race  for  gov- 
ernor in  1888.    Then  the  vote  was : 

Eagle,  Democrat 1,548 

Norwood,  Fusion 1,375 

Democratic  majority  over  the  Fusion  ticket  in  1888 173 


CLAYTON    VS.    BRECKINRIDGE.  729 

Next  take  the  vote  in  this  county  in  the  race  for  supreme  judge  in 
1888.    Taking  the  highest  vote  on  each  side  and  it  is  as  follows: 

Sanders,  Democrat 1, 222 

Hill,  Republican 1 ,  037 

Democratic  majority 185 

This  vote  has  been  cited  by  the  other  side  as  an  evidence  of  the  re- 
sult of  a  perfectly  fair  vote  between  the  parties  in  this  district.  We 
accept  it  as  such.  If  the  Democrats  did  not  turn  out  in  all  the  counties 
they  need  not  have  expected  to  carry  the  part  of  the  State  embraced  in 
this  district.  They  did  not  turn  out,  and  the  counties  of  this  district 
gave  a  Eepublican  majority  of  say  1,000. 

To  show  the  apathy  in  the  mountain  and  other  remote  counties,  all 
strongly  Democratic:  In  Van  Buren  County  only  240  Democrats  voted, 
and  they  carried  the  county  by  only  9  votes;  in  Cleburne  County  only  232 
Democrats  voted,  and  they  carried  the  county  by  only  130  votes ;  in  Stone 
County  only  146  Democrats  voted,  and  they  carried  the  county  by  only 
76  votes.  The  normal  Democratic  majority  in  these  counties  alone 
would  have  given  the  portion  of  the  State  embraced  in  this  district  to 
the  Democracy.  Although  this  election  was  held  April  3,  1889,  after 
the  contest  of  this  case  was  begun  and  after  Colonel  Clayton  was  killed, 
no  effort  wps  made  to  bring  out  the  vote  and  carry  these  counties  or 
the  counties  of  this  district.  That  was  all  looked  upon  as  "  stage"  work 
that  men  confident  of  a  good  cause  would  not  stoop  to. 

Perhaps  it  is  well  now  in  every  way  that  this  was  not  done,  for  as  this 
is  cited  as  a  perfectly  fair  election  in  the  whole  district,  it  follows  that 
it  was  perfectly  fair  in  every  county  and  at  every  precinct  of  the  dis- 
trict. The  result  then  is  that  the  Democracy,  with  conceded  fairness, 
carried  Woodruff  County  at  this  election  by  180  majority.  Now  what 
did  they  carry  it  at  when  Breckinridge  ran  against  (.  lay  ton  ?  Breckin- 
ridge's majority  was  only  220.  It  was  only  40  votes  more  than  it  is 
conceded  the  Democracy  carried  it  at  fairly  in  the  supreme  court  elec- 
tion. And  yet  the  one  is  boasted  of  as  fair  and  the  other  as  horribly 
unfair. 

Yet  these  are  the  people  held  up  to  the  House  and  the  country  as 
ballot-box  stuff'ers, thieves,  aiders,  abettors,  and  sympathizers  with  such 
practices.  It  should  take  very  strong  evidence  to  convict  these  people 
of  such  charges  and  to  overturn  the  official  returns  of  their  election  cor- 
roborated in  the  many  ways  we  have  cited. 

Consider  now  the  character  of  the  testimony  in  opposition  to  all  this 
and  the  means  employed  to  procure  it. 

They  offer  the  inducement  of  $2  a  day  and  mileage  to  a  few  negro 
voters  to  deny  after  the  election  how  they  voted.  What  is  the  cen- 
tral idea  of  the  secret  ballot  now  so  warmly  urged  all  over  the  coun- 
try ?  It  is  not  all  men  who  need  it.  Not  even  all  negroes  who  vote 
the  Democratic  ticket.  But  surely  if  men  will  not  vote  freely  when 
exposed  to  influences  in  the  act  of  voting,  then  these  same  men  will 
deny  that  they  did  or  that  they  intended  to  so  vote  when  offered  money 
or  confronted  with  influences  by  the  exposure  of  their  ballot  after  they 
have  voted.  Are  they  weaker  before  than  after  1  If  the  vote  is  to  be 
cast  in  secret  and  the  act  of  the  voter  is  to  remain  a  secret,  then  what 
are  we  to  rely  upon  as  good  and  sufficient  evidence  of  the  result  ? 
Obviously  upon  the  returns  as  certified  by  the  election  officials.  Were 
there  ever  returns  more  reliably  certified  than  these  from  Woodruff 
County  ?  Were  they  ever  more  reliably  borne  out  by  the  results'  of 
past  elections,  not  only  admitted  to  be  fair,  but  especially  that  for  su- 


730  '  CLAYTON   VS.    BRECKINRIDGE. 

preme  judges  boasted  of  as  fair  ?  And  here,  too,  tbey  have  been  fui  tlier 
accredited  by  the  result  of  the  remarkable  trials  in  the  Federal  conrt. 
It  is  alleged  too  that  the  Republican  party  was  not  in  good  accord  with 
Colonel  Clayton  in  this  county. 

Mr.  Breckinridge  asked  to  have  Mr.  Leach  summoned,  the  leading 
Kepublicau  then  living  in  the  county.  Ho  was  the  Kepublican  candi- 
date for  Congress  in  1886.  It  was  desired  to  show  that  with  the  sen- 
timent among  Republicans  in  this  county  towards  Colonel  Clayton  it 
was  remarkable  that  Mr.  Breckinridge  did  not  run  far  ahead  of  the  ac- 
knowledged honest  majority  of  the  Democrats  in  this  county  instead  of 
only  40  votes  ahead  of  it.  Mr.  Leach  had  gone  to  Oklahoma  to  live 
It  was  promised  that  he  should  come  to  Washington  to  testify,  and 
then  it  was  refused  after  the  subcommittee  got  to  Washington.  We 
will  say  more  of  this  and  of  similar  acts  of  bad  faith  later  on.  We  wish 
however,  to  impress  upon  the  House  that  even  allowing  all  tbus  claimed 
Breckinridge  is  still  elected.  Only  by  allowing  such  evidence  as  this  to 
overbalance  that  in  favor  of  the  honesty  of  the  returns — a  most  impotent 
conclusion — and  by  permitting  it  to  overturn  and  not  to  correct  the  re- 
turns, and  also  by  refusing  to  poll  the  vote  for  Mr.  Breckinridge  at  these 
precincts  as  it  was  polled  for  the  other  side,  can  his  majority  possibly 
be  overcome. 

To  show  how  the  majority  really  estimate  their  negro  testimony, 
which  here  they  take  above  that  of  the  best  officials,  courts,  juries,  and 
all  evidence  by  past  elections  of  the  fairness  of  the  result,  we  recall 
the  instance  where  two  negroes,  as  respectable  looking  as  any  who  aj)- 
peared,  testified  that  they  saw  Dr.  White  and  Wm.  Palmer  in  the  lat- 
ter's  blacksmith-shop,  burning  up  the  Plummerville  ballots  and  ballot- 
box.  Judge  McClure,  without  even  being  sworn,  contradicted  them. 
The  subcommittee  accepted  this  off-hand  and  single  statement  as  fully 
satisfactory  and  dismissed  the  matter  at  once. 

This  ignorant  and  characterless  testimony  is  brushed  aside  when  con- 
tradicted in  a  certain  matter  by  a  Republican,  although  the  former  are 
under  oath  and  the  latter  is  not.  But  the  same  kind  of  testimony,  even 
more  ignorant  and  evidently  more  destitute  oi  character,  is  in  every 
instance  accepted  at  once  when  it  relates  to  a  vote  as  against  the 
sworn  testimony  of  election  officials  of  both  political  parties.  One  such 
negro  comes  and  now  says  he  didn't  intend  to  vote  the  way  he  is  re- 
cortled.  All  the  election  officials  contradict  him,  and  they  are  brushed 
aside  and  he  is  accepted.  It  is  solely  upon  such  testimony  that  the 
majority  has  changed  votes,  and  upon  the  same  testimony  they  cast  out 
Democratic  votes. 

OMISSIONS  FROM  THE  RECORD  AND  REFUSALS  TO  TAKE  TESTIMONY. 

On  page  11  of  the  majority  report  is  the  following  alleged  extract  of 
proceedings  at  Little  Rock : 

At  the  close  of  the  exami nation  of  Governor  James  P.  Eagle,  on  recall,  on  the  night 
of  May  8,  1890,  the  following  pioceediugs  were  had,  to  wit : 

Mr.  Lacey.  Now,  gentlemen,  are  there  any  other  witnesses  to  be  examined? 

Mr.  McClure.  I  have  none. 

Mr.  McCain.  We  had  thought  of  oifering  some  further  evidence,  and  bringing  some 
other  witnesses,  but  we  have  concluded  to  accommodate  the  committee  as  you  are 
anxious  to  get  away  and  get  back  to  Washington,  and  we  will  say  we  are  through. 

Mr.  Laces.  We  want  to  take  all  the  evidence  you  have  to  offer,  and  are  willing  to 
stay  until  you  are  through,  but  if  you  have  nothing  further  to  offer  we  will  adjourn 
sine  die. 

The  committee  adjourned  sine  die. 


CLAYTON   VS.    BRECKINRIDGE.  731 

*^  There  is  no  account  of  auy  such  proceedings  in  the  record.  The  ma 
jority  says : 

By  some  oversight  this  was  uot  inserted  in  the  transcript  and  printed,  and  we  hero 
insert  it. 

In  every  other  instance  the  adjournment  is  duly  noted  and  inserted 
in  the  record.  Reference  to  the  record  will  show  that  in  every  other 
instance  the  proceedings  are  all  taken  down  in  the  order  in  which  tlicy 
occur  and  the  final  words  are  a  statement  of  the  fact  of  adjournment  oi- 
recess,  as  the  case  may  be,  and  of  the  hour  to  which  it  is  taken.  For 
instance,  on  page  536,  the  last  words  in  the  proceedings  of  a  sitting  are 
as  follows : 

The  committee  adjourned  to  9  o'clock  a.  m.,  May  8,  1890. 

"Again on  page  555,  the  presence  of  certain  witnesses  is  ascertained 
and  then  the  committee  takes  a  short  adjournment  for  supper,  and  the 
facts  are  recorded  in  the  following  closing  words : 

Witnesses  *  *  »  were  called  *  »  *  the  committee  adjourned  until  7  p.  m., 
May  8,  1890. 

In  no  instance  is  the  date  of  the  meeting  of  the  committee  brought 
down  at  the  hour  of  adjournment.  That  is  inserted  at  the  beginning 
of  the  sitting,  not  at  the  close.  But  it  will  be  observed  that  not  only  is 
there  nothicg  in  the  record  of  a  sine  die  adjournment  but  the  extract  given 
by  the  majority  is  not  in  the  form  in  which  such  actioa  or  any  adjourn- 
ment would  be  recorded.  The  very  first  lines  of  wliat  purports  to  be 
an  account  of  what  took  place,  and  of  a  transcript  at  the  time  of  what 
took  place,  shows  that  it  is  composed  wholly  as  if  written  from  menory. 
That  it  is  an  incomplete  and  incorrect  statement  of  what  took  place,  as 
we  shall  conclusively  show,  is  by  far  the  most  important  fact,  esi)ecialiy 
in  view  of  the  very  important  character  of  those  proceedings  and  of 
subsequent  events  in  connection  therewith.  But  we  wish  to  fix  the 
responsibility  clearly. 

Mr.  Maish  (a  Democratic  member  of  the  subcommittee)  especially  im- 
pressed upon  the  stenographer  at  the  time  to  take  down  the  full  and 
exact  terms  and  conditions  of  the  last  adjournment  at  Little  Rock.  This 
was  perhaps  the  only  part  of  the  entire  proceedings  that  was  so  specially 
and  emphatically  directed  to  be  taken  down  and  inserted  in  the  record ; 
though  it  was  several  times  impressed  that  all  proceedings  should  be 
taken  down  and  reported.  But  here  were  agreements  of  the  most  import- 
ant character.  It  was  with  great  astonishment,  therefore,  that  it  was 
found  that  every  word  of  the  final  agreements  and  proceedings  had  been 
omitted  from  the  record.  When  Mr.  Maish  called  attention  to  this  fact, 
Mr.  Lacey,  the  chairman  of  the  subcommittee,  said : 

The  omission  is  that  the  reporter  probably  failed  to  take  that. 

Then,  again,  Mr.  Lacey  said : 

I  will  telegraph  him  in  regard  to  it. 

A  reply  was  received  from  the  stenographer  and  shown  to  Mr.  Maish, 
in  which  he  stated  that  he  had  not  taken  down  these  proceedings. 
Then,  we  ask,  why  did  he  omit  to  take  down  a  part  of  the  proceedings  ! 
Why  so  important  a  part  *?  Why  that  part  which  he  was  directed  above 
all  other  parts  by  a  member  of  the  committee  to  take  down  !  By  whoso 
orders  was  this  most  important  data  omitted  '^  And  if  not  taken  down, 
where  does  this  extract  inserted  in  the  majority  report  come  from  ? 

As  the  stenographer  states  he  did  not  take  this  down,  by  whose  order 
was  this  pretended  transcript  prepared?    It  was  not  any  ofiicial  order 


732  CLAYTON   VS.    BRECKINEIDGE. 

of  the  Committee  on  Elections  or  of  the  subcommittee  on  this  case.  * 
When  and  where  was  this  pretended  transcript  prepared  !  That  ste- 
nographer remains  at  his  home  in  Iowa,  has  not  been  to  Washington, 
nor  submitted  to  any  examination  so  far  as  the  minority  of  the  commit- 
tee is  aware.  Nor  has  the  minority  been  consulted  as  to  the  accuracy 
or  propriety  of  this  alleged  transcript  or  as  to  the  mode  of  obtaiument. 
It  is  a  fabrication.  Xot  only  has  the  record  been  mutilated  by  the 
omission  of  most  essential  matter,  which  stamps  the  subsequent,  as  other 
things  do  the  former,  proceedings  of  the  majority  with  prejudice  and  un- 
iairness,  but  a  fabricated  and  false  account  has  been  reported  to  the  House. 
In  order  to  get  at  the  truth  of  the  agreements  and  proceedings  of  the 
committee  in  regard  to  the  taking  of  testimony,  we  insert  the  following 
official  report  of  the  colloquy  in  the  c(mrse  of  Mr.  Breckinridge's  argu- 
ment beiore  the  full  committee,  July  16, 1890.  It  gives  the  distinct  ad- 
mission by  Mr.  Lacey  of  every  statement  we  make. 

Mr.  Lacey.  I  would  like  to  ask  if  you  challenge  the  fairness  of  the  snb  committee  ? 

Mr.  Bkeckinridge.  I  do  most  emphatically.  This,  of  course,  is  Mr.  Garland's 
argument,  but  I  do  charge  unfairness. 

Mr.  Lacey.  I  would  like  to  ask  if  on  the  night  we  left  there  it  was  not  asked  if  any 
more  testimony  was  necessary,  and  your  counsel  said  they  would  take  no  more  testi- 
mony there  that  night. 

Mr.  Bkeckinridge.  On  conditions  covering  two  things :  first  explicit  promises, 
not  one  of  which  has  been  complied  with,  as  to  the  taking  of  testimony  in  Washing- 
ton ;  aud  next,  that  the  whole  question  was  just  as  open  in  Washington  as  it  was  in 
Little  Rock,  and  inquiry  was  not  to  be  construed  at  all  as  closed. 

Mr.  Lacey.  What  specific  promises  ? 

Mr  Breckinridge.  Well,  at  the  request  of  the  subcommittee,  we  deferred  sum- 
moning parties  from  St.  Louis,  in  connection  with  the  Meecham  Arms  Company.  It 
was  suggested  by  you,  Mr.  Chairman,  that  we  have  a  meeting  in  St.  Louis,  but  after- 
wards preferred  to  bring  them  to  Washington,  that  you  declined  here  afterwards.  And 
as  regards  Mr.  Wood,  it  was  stated  and  admitted  by  yourself,  and  apparently  assented 
to  by  the  committee,  that  it  would  be  more  convenient  to  have  Mr.  Wood  come  to 
Washington,  than  Little  Eock.  I  think  you  will  remember  you  said  his  coming  to 
Little  Rock  was  inconvenient.  I  offered  to  pay  his  way  there  and  yon  promised  he 
would  be  in  Washington,  which  was  specifically  denied  afterwards.  Then  in  regard 
to  Mr.  Coblentz,  it  was  stated  that  it  was  easier  to  call  him  to  Washington  than 
Arkansas. 

Mr.  Lacey.  That  is  three ;  what  others  f 

Mr.  Breckinridge.    I  will  not  pretend  to  call  them  all  off. 

A  Member.  We  would  like  to  have  it  because  it  seems  to  be  a  matter  of  contro- 
versy. 

Mr.  Maish.  I  would  suggest  I  was  sorry  to  see  that  that  part  of  the  proceedings 
which  related  to  the  taking  of  testimony  subsequent  to  the  adjournment  there  is  not 
in  the  record.  I  think  Mr.  Breckinridge  would  be  sustained  entirely  if  it  was  there. 
I  was  very  particular  that  that  should  not  be  waived  at  all,  and  I  discovered  after- 
wards they  quit  taking  testimony.    There  is  not  a  single  thing  in  the  record  about  it. 

Mr.  Lacey.  The  omission  is  that  the  reporter  probably  failed  to  take  that. 

Mr.  Maish.  I  had  personally  requested  the  reporter  to  take  down  everything. 

Mr.  Lacey.  I  think  it  is  important  we  should  have  these  names. 

Mr.  Crisp.  Who  was  the  reporter  ? 

A  Member.     Some  one  from  the  West. 

Mr.  Crisp.  He  must  be  required  to  produce  it. 

Mr.  Lacey.  I  shall  telegraph  him  in  regard  to  it. 

Mr.  Breckinridge.  My  distinct  understanding  with  the  chairman  was  that  any  of 
these  witnesses  that  I  desired  should  be  brought  to  Washington,  and  therefore  I  did 
not  enumerate  them  all  to  the  chairman. 

Mr.  Lacey.  Did  yon  not  on  that  occasion  say  there  were  about  twenty-five  wit- 
nesses whose  testimony  you  desired  to  take  in  relation  to  these  votes  ? 

Mr.  Breckinridge.  Not  at  all.  That  related  to  another  matter.  I  stated,  Mr. 
Chairman,  distinctly,  that  if  you  were  going  to  adjourn  I  would  like  to  get  the  power 
to  have  depositions  taken,  and  that  I  might  want  to  take  the  depositions  of  a  large 
number  of  witnesses  as  to  how  they  voted,  etc.,  but  that  until  I  had  opportunity  to 
confer  with  counsel,  I  could  not  tell  definitely.  The  chairman  knows  liow  brief  the 
time  was,  everything  was  under  whip  and  spur,  and  we  had  no  previous  notice  in  tho 
way  matters  are  usually  conducted.  That  was  denied  me,  and  it  was  stated  in  that 
connection  that  the  whole  question  was  just  as  open  in  Washington  as  in  Little  Rock. 


CLAYTON    VS.   BRECKINRIDGE.  733 

Well,  I  said,  "  if  it  is  jnst  as  open  in  Washington  as  in  Little  Rock,  it  does  not  make 
any  difference  to  me  whether  we  sit  atWashington  or  Little  Rock."  What  I  wanted 
to  know  was,  whether  it  was  entirely  open.  I  said,  "  You  have  the  power  to  close  it 
here,  but  I  v^ant  you  to  understand  you  do  not  close  it  at  this  time  or  at  this  place 
with  my  consent." 

Mr.  Lacey.  There  is  no  controversy  about  that. 

Mr.  Bergen.  I  waut  to  enter  right  here  a  denial  of  the  statement  as  made' by  Mr. 
Breckinridge  and  I  want  to  state  that  this  question  was  not  to  be  opened  in  full 
committee  or  in  Washington. 

Mr.  Breckinridge.  That  relates  to  the  business  of  the  subcommittee  and  the  full 
committee,  and  they  can  attend  to  it  at  any  time. 

Mr.  Maish.  I  state  that  it  was  understood  it  should  not  be  closed  and  we  might 
determine  and  take  testimony  just  as  we  saw  fit. 

Mr.  Breckinridge.  It  was  as  open  here  as  there.  Those  are  the  exact  words  of 
the  chairman. 

Mr.  Bergen.  I  do  not  think  there  will  bo  any  controversy  between  Mr.  Maish  and 
nayself  »bout  it.    I  am  sure 

Mr.  Maisii.  Certainly  not. 

Mr.  Haugen  and  several  members.  Suppose  we  go  on  with  Mr.  Garland's  brief,  Mr. 
Chairman. 

Mr.  Lacey.  Mr.  Breckinridge,  there  is  no  controversy  between  you  and  myself  in 
regard  to  the  witnesses  referred  to  in  that  way.  I  thought  it  was  but  just  to  the  com- 
mittee that  he  give  us  the  names  so  we  may  have  them  in  the  record. 

Mr.  Breckinridge.  You  refused  to  summon  them  after  an  express  agreement  that 
you  would  do  so. 

A  Member.  Suppose,  Mr.  Chairman,  we  go  on  hearing  Mr.  Garland's  brief  now. 

What  stronger  evidence  could  there  be  of  the  incomplete  and  preju- 
diced character  of  this  so-called  investigation,  and  of  the  utter  unrelia- 
bility of  the  findings  and  statements  of  fact  by  the  majority. 

The  subcommittee  dispersed,  after  adjourning  on  the  8th  of  May, 
some  going  to  their  homes,  and  they  assembled  here  slowly  afterwards. 
Mr.  Breckinridge  remained  a  few  days  in  Arkansas.  The  time  when 
the  subcommittee  was  ready  to  proceed  to  the  completion  of  the  inves- 
tigation is  indicated  by  the  time  they  had  their  witness,  Warren  Taylor, 
her*^  to  meet  them  and  testify.  He  was  an  alleged  State's  witness  in 
one  of  the  prosecutions  before  the  Federal  court.  The  subcommittee 
was  ready  to  hear  him  and  to  resume  on  the  2l8t  of  May,  1890,  less  than 
two  weeks  after  their  adjournment  at  Little  Rock. 

On  the  23d  of  May,  1890,  ex- Attorney-General  Garland,  counsel  here 
for  Mr.  Breckinridge,  promptly  met  the  subcommittee  (p.  377)  in  regard 
to  taking  the  additional  testimony.  He  also  called  attention  to  the  fact 
that  he  had  addressed  a  note  to  the  chairman  during  the  previous  week 
upon  this  subject.  Mr.  Lacey  said  it  was  thought  important  to  take  Tay- 
lor's testimony  here  (the  prosecuting  witness);  "but,"  said  he,  ''the 
other  witnesses,  I  am  informed,  are  not  to  be  called."  Who  informed 
him  of  this  he  does  not  state,  nor  have  we  ever  been  able  to  ascertain. 

Then  he  alludes  to  the  application  Mr.  Breckinridge  made  two  or 
three  days  before  the  subcommittee  started  for  Arkansas,  and  which 
was  not  only  not  granted  but  was  not  even  replied  to,  asking  that  cer- 
tain members  of  the  House,  four  of  them  members  of  the  Committee  on 
Elections,  be  called  upon  to  testify  before  the  subcommittee  left.  These 
were  Mr.  Rowell,  chairman  of  the  full  committee,  Mr.  Haugen,  Mr.  Dal- 
zell,  and  Mr.  Greenhalge.  All  of  these  gentlemen  had  argued  from  this 
case  to  show  why  other  Democrats  should  be  unseated  before  they  had 
entered  upon  the  investigation. 

It  is  difficult  to  conceive  upon  what  grounds  of  justice  or  propriety 
gentlemen  will  cite  in  argument  the  assumed  character  or  facts  of  a  case 
before  any  evidence  therein  was  taken.  Especially  is  this  so  when  the 
case  had  been  referred  to  them  for  judicial  investigation  and  considera- 
tion ;  and  still  more  especially  if  they  knew  nothing  about  it.  These 
gentlemen  of  matured  judgment  and  training,  and  occupying  the  posi- 


734  CLAYTON   VS.    BRECKINRIDGE. 

tioiis  they  did,  were  not  to  be  presumed  to  be  thus  bold  unless  they  had 
peculiar  information  not  possessed  by  others,  and  no  positive  informa- 
tion was  known  to  be  possessed  by  any  one  as  to  the  mooted  points  in 
controversy. 

Hence  it  was  desirable  in  the  interest  of  justice  that  the  subcommit- 
tee get  their  testimony  before  going  to  Arkansas.  And  even  had 
these  gentlemen  spoken  in  ignorance,  and  hence  in  blindness  and  prej- 
udice, it  was  equally  desirable  to  expose  that  fact,  if  rights  are  to  be 
equally  guarded,  in  order  that  they  might  take  warning  before  being 
called  upon  to  pass  final  judgment,  and  that  the  House  and  the  country 
might  have  this  suitable  test  of  their  fairness.  But  it  was  ignored 
and  not  even  laid  before  the  subcommittee.  Why  not?  Is  it  pre- 
sumptions to  suppose  that  in  this  case  the  sitting  member  or  his  constit- 
uents have  any  rights!  Ordinarily  in  a  case  of  the  gravity  of  this  one, 
we  would  expect  the  majority  to  be  exceedingly  careful  to  avoid  even 
the  appearance  of  unfairness,  in  order  that  no  man  could  say  that  they 
were  disposed  to  fasten  upon  innocent  men  or  upon  a  people  the  guilt 
of  an  "  alleged  assassination,"  to  use  the  language  of  the  House,  or  that 
they  were  disposed  to  make  political  capital  out  of  blood.  Nothing  can 
be  so  potent  in  a  case  like  this  as  the  truth  fairly  found  and  fairly  told. 

It  was  agreed  that  Mr.  Garland  should  present  an  application  setting 
forth  what  he  deemed  necessary  to  complete  the  case  and  properly  ex- 
haust the  parts  that  had  been  hurriedly  or  insufficiently  examined  into. 

The  subcommittee  had  been  authorized  to  "  proceed  to  Arkansas,  if 
deemed  necessary  by  them,  to  take  any  part  of  said  testimony."  The 
House  had  only  instructed  it  to  "  make  a  full  and  thorough  investiga- 
tion." *  *  *  It  had  not  instructed  it  to  go  to  Arkansas ;  it  said  it 
"  may  proceed  to  Arkansas  to  take  any  part  of  said  testimony."  It  had 
not  instructed  it  to  complete  anything  there,  or  fixed  any  limitation  upon 
it  except  that  it  must  be  "full  and  thorough;"  and  we  have  seen  from 
Mr.  Lacey's  own  admission  that  ^'everything  was  to  be  just  as  open  at 
Washington  as  there,"  and  that  "any  of  these  witnesses  were  to  be 
brought  to  Washington." 

Pages  377  and  388  of  the  testimony  will  show  how  members  of  the 
committee  viewed  this  matter  upon  its  casual  introduction  before  this 
ampler  statement  of  the  facts  was  concurred  in  by  Mr.  Lacey.  Mr.  Gar- 
land submitted  his  statement.  Nothing  in  it  called  for  the  absence  of 
the  subcommittee  again.  Mr.  Breckinridge  had  witnesses  in  attendance 
near  midnight,  when  the  LittleKock  adjournment  took  place,  unexamined, 
but  which  he  thought,  under  theagreement,  it  would  be  cheaper  and  bet- 
ter to  defer  to  Washington  or  to  take  by  deposition  than  to  longer  detain 
the  committee.  It  will  be  seen  that  most  of  the  testimony  here  called 
for  could  be  easily  taken  by  the  usual  mode  of  deposition,  quickly  pre- 
pared and  quickly  taken.    The  application  was  as  follows : 

IN  THE  MATTER  OF  THE  INQUIRY  INTO  THE  ELECTION  OF  CLIFTON  R,   BRECKINRIDGK 
FROM  THE  SECOND  CONGRES8IONAX,  DISTRICT  OF  ARKANSAS. 

To  the  Committee  on  Elections  in  the  House  of  Representatives  in  the  Fifty-first  Congress: 

The  said  Breckinridge  moves  the  committee  to  prolong  this  investigation  and  give 
him  time  to  take  the  testimouj'  of  the  following  witnesses  to  prove  what  is  set  forth 
and  meationed  in  connection  with  the  names  of  each,  viz  : 

It  is  understood  the  vote  of  the  Plnmmerville  box,  as  proved  up,  leaves  the  defend- 
ant's majority  in  the  district  something  less  than  500  votes. 

Certain  preciucts  in  Woodruff  County,  viz,  Augusta  Town,  Augusta  Township, 
Riverside,  and  White  River  precincts,  have  been  dealt  with  by  the  committee.  De- 
fendant has  rested  secure  as  to  these,  as  the  United  States  court,  as  well  as  the  elec- 
tion officials  of  both  parties,  have  declared  that  the  votes  were  counted  as  cast  and 


CLAYTON    VS.    BRECKINEIDGE.  735 

were  cast  as  counted.     Defeudaut  had  not  iiresnmed  that  an  attempt  would  be  made 
tc  depiive  him  of  the  small  contiugeut  of  colored  votes  received  there. 

As  the  proceediugs  of  the  committee,  however,  indicate  an  intention  to  reverse  the 
tindiugs  of  the  electiou  officials  of  the  United  States  district  court  by  the  testimony 
of  the  few  negroes  defeudaut  had  voting  for  him,  now  exposed  to  the  proscription  of 
their  church  and  race  if  they  confessed  in  public  how  they  voted,  and  to  cast  out 
these  precincts  except  in  so  far  as  the  votes  may  be  proved  up  anew,  it  is  desired  to 
prove  up  the  defendant's  vote.  It  is  true  the  change  in  the  small  Democratic  negro 
vote,  apparently  propoesd  by  the  committee,  does  not  defeat  defendant ;  but  if  they 
propose  to  cast  out  the  white  vote  and  only  hold  on  to  the  Republican  vote,  that  would 
defeat  him.  He  asks,  therefore,  to  prove  up  his  vote  at  these  precincts,  provided  it 
is  contemplated  by  the  committee  to  refuse  the  reports  of  the  officials  and  the  find- 
ings of  the  United  States  court  which  tried  and  acquitted  these  officials  upon  the 
cliarge  that  they  had  tampered  with  the  ballots,  which  court  had  the  ballots  and  poll- 
books  and  all  other  evidence  before  it. 

The  committee  also  took  proceediugs  as  to  the  Cotton  Plant  box,  in  Woodrufl: 
Couuty,  and  it  is  asserted  they  found  certain  ballots  which  the  majority  considered 
suspiciously  numbered,  aud  also  that  a  few  negroes  were  returned  as  voting  for  de- 
fendant wlio  denied  it  when  asked  in  public.  If  it  is  contemplated  to  cast  out  the 
Democratic  vote  here  and  count  only  the  Republican  vote  as  thus  proved,  it  is  asked 
to  poll  the  Democratic  vote  at  this  box. 

The  Freeman  Township  box  in  Monroe  County  appears  to  be  attacked  because  no 
election  was  held  there.  If  it  is  proposed  to  count  the  Republicans  who  did  not  vote, 
it  is  requested  to  similarly  poll  the  Democrats  there  who  failed  to  vote.  Defendant 
claims  that  this  is  a  Democratic  precinct  by  a  small  majority,  and  that  the  failure  to 
bold  an  election  was  due  to  the  Republicans ;  the  only  lawyer  on  the  ground  being  a 
Republican,  and  he  also  a  United  States  election  official. 

It  is  asked  that  Mr.  Leach  be  sum«ioned  to  prove  that  the  Republican  party  was 
not  well  organized  in  Woodru if  County  in  188H,  and  that  itnder  such  circumstances 
the  Democratic  party  usuallj'^  can  and  does  receive  about  10  per  cent,  of  the  colored 
vote,  as  in  1888. 

It  is  requested  that  Dr.  C.M.Taylor,  of  South  Bend,  Ark.,  be  examined  to  testify 
that  he  could  have  voted  thirty-two  colored  laborers  on  his  farm  if  the  "  church  "  had 
not  been  brought  to  bear  on  them.  He  lost  all  theii  votes,  and  if  they  had  voted  for 
Breckinridge  and  had  been  called  on  afterwards  to  confess  it  under  proscriptive  con- 
ditions, they  would  have  denied  it. 

Wood — Pinkerton  detective-^to  prove  the  course  of  proceedings  to  detect  the  mur- 
derer of  John  M.  Clayton. 

Produce  the  reward  proclamation  of  Democratic  county  committee  of  Conway 
County  to  catch  ballot-box  thieves  at  Plummerville. 

To  produce  the  letter  from  a  widow  lady,  name  not  remembered,  to  Governor  Eagle 
to  show  persistency  of  Democrats  in  aiding  him  to  catch  the  murderers,  upon  the 
theory  that  the  ballot-box  thieves  or  any  citizens  of  Conway  County  committed  the 
murder. 

Also  (he  letter  of  C.  R.  Breckinridge  to  Carroll  Armstrong,  relating  to  duty  of  Con- 
waj'  County  and  Armstrong's  reply  to  Breckinridge. 

To  produce  the  proceedings  of  coroner's  jury  in  Conway  County  in  case  of  Joe 
Smith,  colored,  killed,  and  politics  of  jury. 

To  produce  the  communication  from  the  colored  man  Jordan  in  Conway  County, 
showing  how  and  why  that  county  went  Democratic  in  September  State  election  in 
1888. 

The  testimony  of  Judge  Cunningham,  now  in  Guthrie,  Oklahoma,  to  show  why  he 
resigned  as  circuit  judge,  or  accept  a  copy  of  his  letter  to  the  Gazette  on  that  subject. 

The  testimony  of  Carter,  prosecuting  attorney  of  judicial  circuit  Conway  County 
is  in,  to  show  why  no  indictment  was  found  for  the  killing  of  Clayton. 

Testimony  of  Eagle  C\ub  (colored  and  Democratic)  Cornerstone,  Ark.,  to  show  diffi- 
culty of  colored  men  who  wanted  to  vote  the  Democratic  ticket. 

The  testimony  of  Logan  H.  Roots,  as  to  his  article  in  the  North  American  Review 
last  spring  on  the  subject  of  the  killing  of  Clayton  and  politics  in  Arkansas. 

The  testimony  of  William  M.  Fishback  as  to  the  character  of  the  people  making 
the  wholesale  charges  of  wrong  and  crime  against  the  people  of  that  district,  and 
his  theory,  after  investigation,  of  the  killing  of  Clayton. 

The  testimony  of  Powell  Clayton  as  to  his  letter  requesting  all  such  troubles  to  be 
reported  to  him,  to  be  used  for  campaign  purposes,  or  a  copy  of  the  letter  be  admitted 
in  evidence ;  and  also  a  copy  of  his  letter  and  other  official  proceedings  approving  the 
murder  of  Hooper  and  others  in  Conway  County  ;  and  also  his  letter,  or  a  copy,  to 
Major  Hunn,  at  Pine  Bluff,  asking  for  money  from  Democrats  to  aid  his  private  de- 
tectives in  finding  out  the  murderer  of  his  brother. 
The  testimony  of  the  sheriff  of  Los  Angeles,  Cal.,  to  show  on  what  he  based  hia 


736  CLAYTON    VS.    BRECKINRIDGE 

nnqnalified  statement  that  Hooper  was  absent  from  California  some  time  before  and 
after  Clayton  was  killed. 

The  testimony  of  Dr.  Greene,  of  Log  Angeles,  Cal.,  who  was  Hooper's  family  phy- 
sician couf  iuuonsly. 

The  testimony  of  ihe  citizens  referred  to  by  Sater  and  Mrs.  Hooper,  who,  he  said, 
told  him  of  Hooper's  absence,  as  stated  above. 

Tbe  testimony  of  the  man  Lewis,  referred  to  by  the  California  sheriff,  whose  evi- 
dence was  reported  to  Governor  Eagle. 

The  production  of  the  confession  of  the  colored  man  Parks  as  to  the  real  murderer 
of  Clayton. 

The  testimony  of  D.  H.  Womack,  for  the  further  statement  of  the  particulars  of  the 
killing  of  Clayton,  not  distinctly  brought  out  in  his  former  examination. 

The  testimony  of  E.  C.  Meacham,  of  the  E.  C.  Meacbam  Arms  Company,  St.  Louis, 
Mo.,  wi<»h  his  nales-books  from  April  24.  1888,  to  January  29,  1&89,  as  to  the  pistol 
alleged  to  have  been  sold  by  his  company,  and  supposed  to  be  the  pistol  found  on  the 
ground  or  place  of  the  killing  of  Clayton. 

And  the  testimony  of  C.  H.  Jones,  of  St,  Louis,  and  Samuel  W.  Fordyce,  of  the  same 
place,  as  to  their  inquiries  on  this  same  subject  of  the  pistol,  or  the  production  of 
their  correspondence  with  the  defendant  touching  the  same. 

And  the  testimony  of  Judge  W.  S.  Hemmingway,  law  partner  of  John  M.  Clayton, 
to  show  Clayton  had  no  information  upon  which  to  base  a  belief  of  his  election,  or 
the  production  of  Judge  H.'s  letter  on  this  point,  written  about  the  close  of  last 
winter. 

The  testimony  of  C.  R.  Breckinridge  himself  as  to  the  steps  taken  to  detect  the  per- 
son or  persons  engaged  in  killing  Clayton. 

The  testimony  referred  to  to  be  taken  in  such  manner  as  may  best  suit  the  conven- 
ience of  the  committee. 

He  believes  and  so  avers  the  same  is  essential  to  a  clear  and  proper  understanding 
of  the  merits  of  his  case,  as  charged  and  brought  before  the  committee  by  the  inquir- 
ing party. 

Ho  does  not  ask  for  the  taking  of  this  ttbtimony  for  delaj',  but  because  he  has  not 
had  the  opportunity  to  present  the  facts  fully,  which  he  expects  to  prove  as  aforesaid. 
The  investigation  has  not  proceeded,  as  is  usual  in  such  cases,  but  each  party  has  been 
allowed  to  bring  in  testimony  at  will,  without  waiting  for  the  case  to  be  closed  on  the 
one  side,  and  then  for  the  other  to  rebut,  a  mode  protested  against  by  defendant,  and 
manifestly  unfair  to  him.  Occupying  the  position  of  defendant  iu  this  inquiry,  he 
could  not -be  expected  to  present  his  case  entire  until  the  contestant,  or  the  inquir- 
ing party,  had  concluded  the  case  against  him. 

He  did  not,  nor  does  he  now,  understand  that  the  case  was  closed  when  the  sub- 
committee ended  its  sitting  at  Little  Rock,  Ark.,  and  certainly  nothing  he  and  his 
counsel  there  said  or  did  would  warrant  sucli  an  impression,  but  quite  the  contrary. 
His  belief  was,  that  on  the  adjournment  of  the  subcommittee  at  Little  Rock,  Ark., 
this  defendant  would  be  allowed  here  or  elsewhere,  as  it  pleased  the  committee,  to 
bring  iu  the  testimony  above  indicated  to  rebut,  as  far  as  may  be,  the  testimony 
produced  by  the  other  side. 

He  does  not  feel  that  it  is  fair  and  just  to  his  constituents  and  to  the  very  right  of 
his  claitn,  as  the  legal  representative  of  such  district,  to  proceed  to  a  hearing  of  the 
case  without  this  testimony. 

While  he  by  no  means  concedes  the  testimony  already  taken  in  any  manner  im- 
peaches his  right  to  the  seat  contested,  yet,  to  refute  and  clear  up  certain  points  made 
as  charges  against  the  people  he  represents,  he  deems  it  right  that  this  testimony  be 
adduced. 

Wherefore,  etc. 

Very  respectfully, 

C.  R.  Breckinridge. 

A.  H.  Garland, 
H.  J.  May, 

Aftomeyg. 
UxtTED  States  of  America. 

District  of  Columbia: 
I,  Clifton  R.  Breckinridge,  named  in  the  foregoing  motion,  do  solemnly  swear  the 
facts  therein  stated  are  true,  to  the  best  of  my  knowledge  and  belief.     So  help  me 
God. 

Clifton  R.  Breckinridge. 

Sworn  to  and  subscribed  before  me.  May  26,  1890. 

[seal.]  William  W.  Moffktt, 

Notary  Pnblio, 


CLAYTON   VS.   BRECKINRIDGE.  737 

To  this  the  majority  of  the  subcommittee,  through  its  chairman,  made 
the  following  reply,  so  strangely  at  variance  from  the  promises  and  agree- 
ments upon  which  an  adjournment  was  made  at'Little  Rock,  so  at  vari- 
ance from  what  is  said  on  pages  377  and  378,  from  tlie  duty  of  the  com- 
mittee, and  from  the  admission  of  Mr.  Lacey  in  his  colloquy  with  Mr. 
Breckinridge  and  Mr.  Maish  before  th<'  full  committee : 

June  3, 1890. 

The  subcommittee  having  examiued  the  application  of  contestee  in  relation  to  the 
taking  of  furtlier  testimony  in  the  case  of  Clayton  vs.  Breckinridge,  make  the  follow- 
ing ruling : 

The  application  of  the  contestee  to  take  further  testimony  in  Arkansas  is  denied. 
Full  opportunity  was  given  to  take  such  testimony  at  Little  Rock,  and  the  case  was 
there  closed  as  to  such  testimony  with  the  consent  of  the  contestee.  The  closing  of 
the  case,  however,  at  that  point  only  related  to  taking  testimony  at  Little  Rock, 
leaving  the  subject  of  further  testimony  at  Washington  to  be  considered  on  arrival 
here.  As  to  three  of  the  witnesses,  Dr.  C.  M.  Taylor,  C.  R.  Breckinridge,  and  Powell 
Clayton,  while  the  committee  know  of  no  reason  why  their  testimony  was  not  suffi- 
ciently taken  at  Little  Rock,  yet  as  all  three  of  said  witnesses  are  in  Washington  to- 
day, the  committee  will  hear  their  further  testimony  if  contestee  desires  to  have  same 
taken. 

As  to  all  documentary  evidence  called  for,  the  committee  will  receive  same  and 
place  same  in  the  record,  subject  to  all  proper  objections  as  to  relevancy,  materiality, 
or  competency,  provided  the  same  is  furnished  tjefore  the  evidence  is  fully  printed. 
The  record  is  now  being  printed  and  the  committee  suggest  that  evidence  of  this 
character  shall  be  presented  at  an  early  day  if  contestee  desires  to  have  same  printed 
in  the  record. 

As  to  the  Meacham  Arms  Company  evidence,  the  committee  have  fully  examined 
the  correspondence  of  said  company.  The  application  to  take  such  testimony  does 
not  disclose  its  materiality  or  relevancy,  but  the  committee  deem  it  proper  to  say  that 
from  such  correspondence  they  are  informed  that  the  company  did  not  keej*  the  num- 
bers of  the  revolvers  sold  at  that  time,  and  had  no  record  by  which  the  sale  of  this 
revolver  could  be  traced.  A  revolver  of  the  same  pattern,  however,  seems  to  have 
been  sold  to  one  Vandermeulen,  and  by  him  sold  to  a  party  whose  name  was  to  him 
unknown,  and  who  was  en  route  to  Montana,  and  there  is  no  way  of  ascertaining 
whether  the  revolver  was  or  was  not  the  one  in  question,  it  merely  being  one  of  the 
same  pattern. 

As  to  the  testimony  of  Mr.  Fishback  and  Mr.  Roots,  they  were  both  present  during 
a  considerable  portion  of  the  hearing  at  Little  Rock,  and  no  reason  is  given  why  the 
testimony  was  not  there  taken  if  desired. 

As  to  the  testimon}'  of  Judge  Cunningham,  whilst  the  subject  of  his  resignation 
was  discusBed  before  the  committee,  it  was  not  explained  by  testimony,  and  there  is 
no  showing  as  to  its  relevancy  or  materiality. 

The  other  witnesses  living  in  Arkansas  could  have  been  examined  there. 

As  to  the  recalling  of  Mr.  Wonark,  no  reason  is  given  as  to  why  his  evidence  and 
that  of  Mr.  Alnutt,  already  taken,  did  not  fully  describe  the  particulars  of  the  killing 
of  Mr.  Clayton. 

As  to  the  testimony  of  parties  in  California,  there  is  no  showing  as  to  the  character 
of  their  testimony,  as  to  its  relevancy  or  materiality,  nor  is  there  anything  to  indicate 
that  the  testimony  would  in  any  manner  conflict  with  the  testimony  already  taken  as 
to  the  whereabouts  of  Hooper  at  the  time  of  the  murder.  There  is  no  showing  that 
such  testimony  would  conflict  with  that  of  the  Hooper  family  taken  at  Little  Rock. 
Owing  to  the  fact  that  the  so-called  Hooper  theory  was  brought  out  about  the  time 
that  the  investigation  commenced  at  Little  Rock  there  had  been  no  previous  oppor- 
tunity to  investigate  the  same  upon  the  part  of  persons  representing  the  contestant. 
Telegraphic  communication  was  at  once  had  with  parties  at  Los  Angeles,  the  results 
of  which  are  not  set  out  in  this  application,  although  exhibited  to  the  committee. 

In  the  absence  of  any  showing  whatever  that  the  proposed  testimony  will  throw 
any  light  upon  that  theory  of  the  case  the  committee  do  not  deem  it  proper  to  delay 
the  case  to  take  the  proposed  testimony  of  California  witnesses. 

As  to  the  testimony  of  Jones  and  Fordyce  in  regard  to  the  revolver,  there  is  no 
showing  that  the  same  would  throw  any  light  upon  the  identity  of  the  revolver. 

As  to  Judge  Hemmingway's  testimony,  we  do  not  believe  it  to  be  competent  or  ma- 
terial, and  if  competent,  there  is  no  reason  why  the  same  was  not  taken  in  Arkansas. 

If  contestee  desires  to  take  the  testimony  of  Dr.  Taylor  or  Mr.  Breckinridge  or 
General  Clayton,  the  witnesses  now  present  in  the  city,  he  should  so  notify  the  com- 
mittee immediately. 

H.  Mis.  137 47 


738  CLAYTON   VS.    BRECKINRIDGE. 

To  this  proposition  to  violate  agreements  and  to  dismember  Mr. 
Breckinridge's  presentation  of  his  case  the  following  reply  was  made : 

Washington,  D.  C,  June  4,  1890. 
To  the  Committee  on  Elections  in  the  House  of  Representatives  in  the  Fifty-first  Congress  : 

In  response  to  tbe  communication  of  yesterday  from  your  subcommittee  touching 
the  application  of  Clifton  R.  Breckinridge,  tiled  before  you  on  the 27th  ult.,  for  Iho  tak- 
ing of  additional  testimouy  in  the  matter  of  inquiry  into  his  right  to  the  seat  in  the 
present  Congress  as  Representative  of  the  Second  Congressional  districtof  Arkansas, 
the  said  Breckinridge  would  respectfully  say  : 

His  said  application  was  made  in  good  faith,  and  as  the  first  step  towards  a  method- 
ical procedure  in  ihis  investigation,  presenting  for  the  first  time  in  its  progress  the 
names  of  witnesses,  what  was  expected  to  be  proved  by  each  of  them,  with  dates  aud 
points  all  attached.  Heretofore,  as  suggested  in  such  application,  the  in<iuiry  pro- 
ceeded in  no  fixed  or  connected  manner,  and  he  knew  not  exactly  what  he  was  called 
upon  or  expected  to  rebut.  In  fact,  he  was  without  in  ormatiou  on  this  subject  uutil 
the  witnesses  were  being  examined  on  the  stand.  Making  the  application  as  he  did 
to  meet  certain  vague  and  uudefiued  charges  aud  assenions  as  a  whole,  his  request 
stands  as  a  whole,  and  not  a  fragment.  Every  ])art  and  parcel  of  it  is  a  link  to  be 
connected  with  other  facts  and  circumstances  that  make  up  his  case  to  meet  such 
charges  and  assertions  of  the  party  inquiring,  whoaver  he  may  be.  There  is  nothing 
to  be  found  in  the  record,  directly  or  indirectly,  that  precludes  respondeut  from  the 
exercise  of  this  right.  Had  the  investigation  at  Little  Rock,  Ark.,  been  conducted 
according  to  the  usages  in  judicial  or  quasi-judicial  controversies,  with  ample  time 
therefor,  this  application  would  not  have  been  necessary. 

Respondent  is  compelled  to  accept  the  overruling  of  this  applica:ion,  with  the 
three  exceptions  of  the  testimony  of  Dr.  Taylor,  Powell  Clayton,  and  respoudent; 
and,  so  far  as  these  are  concerned,  their  testimony,  standing  unconnected  with  the 
other  testimouy  asked  for  in  the  application,  would  be  of  no  avail.  Aud  as  to  what 
is  termed  documentary  evidence  in  the  ruling  of  the  subcommittee  the  same  reason 
applies:  all  that  is  a  portion  of  an  entire  defense,  suggested  and  indicated  by  the 
motion  or  application,  aud  of  itself  aud  by  itself,  without  the  other  facts  to  be  estab- 
lished, as  set  forth  in  such  application,  are  valueless. 

The  conces.sion  of  the  committee  to  the  respondent  that  he  may  take  the  testimony 
of  Dr.  Taylor  and  Powell  Clayton  because  they  are  here  present  must  not  be  based 
upon  the  assumption  that  they  are  here  at  the  request  or  by  the  procurement  of 
respondent,  for,  so  far  as  he  is  concerned,  their  presence  is  entirely  accidental.  They 
were  not  brought  here  by  any  act  or  suggestion  of  this  respoudent.  He  asks  no  fur- 
ther delay  of  the  committee  since  this  ruling  upon  his  application,  but  leaves  it  free 
to  proceed  with  the  case  as  it  may  deem  best,  requesting  that  his  motion  for  the  tak- 
ing of  more  testimony,  with  the  ruling  of  your  subcommittee  on  it  and  this  response 
to  such  ruling,  be  made  a  part  of  the  record  of  this  case  aud  printed  thereiu ;  and 
also  that  the  names  of  the  witnesses,  voters  at  the  election  inquired  into  in  the 
State  of  Arkansas,  be  printed  in  the  record  in  alphabetical  order,  as  a  matter  of  con- 
venience to  all. 

Very  respectfully, 

C.  R.  Breckinridge. 

A.  H.  Garland, 
H.  J.  May, 

Counsel. 

DEATH  OF  JOHN  M.   CLAYTON. 

Without  discussing  the  question  of  the  Federal  Government  inquir- 
ing into  the  criminal  affairs  of  a  State,  we  will  simply  say  that  the 
direction  of  the  committee  to  inquire  thoroughly  into  everything  relating 
to  the  death  of  Clayton  was  perhaps  the  one  part  of  the  instructions 
that  the  public  expected  and  desired  to  be  carried  out  the  most  ex- 
haustively. In  order  that  there  might  be  no  misunderstanding  about 
the  authority  and  duty  to  do  this,  Mr.  Breckinridge  had  the  order  of 
inquiry  enlarged  by  an  amendment  which  clearly  embraced  it,  aud  the 
instructions,  as  thus  amended,  were  unanimously  adopted  by  the  House. 

Citizens,  authorities,  all  have  responded  to  every  call  and  assisted 
every  effort.  Every  process  has  been  promptly  obeyed.  Every  ques- 
tion promptly  answered.    Every  test,  such  as  writing  from  dictation,  or 


CLAYTON    VS.    BEECKINRIDGH.  739 

any  other  the  committee  saw  fit  to, impose,  was  promptly  responded  to 
by  every  party  suspected  or  accused.  If,  then,  there  has  been  failure 
to  examine  important  witnesses,  to  exhaust  any  and  every  theory,  if 
there  has  been  any  halting  in  proceedings  and  any  suppression  of  testi- 
mony, any  eftort  to  confuse  the  case,  to  sliield  the  guilty,  to  accuse  or 
besmirch  the  innocent,  or  to  place  a  cloud  needlessly  and  hence  unjustly 
upon  any  one,  or  any  effort  in  any  way  to  handle  this  case  badly  for  mere 
political  purposes,  the  House  will  know  where  the  responsibility  lies. 

John  M.  Clayton  was  killed  at  a  little  place  called  Plummerville, 
in  Conway  County,  Ark.,  on  the  night  of  January  29,  1889.  Two  men 
were  in  the  room  with  him  at  the  time  he  was  shot.  One  of  them  was 
Mr.  W.  D.  Allnutt,  a  lawyer  and  notary  public,  and  a  Kepublican.  He 
was  assisting  Colonel  Clayton  in  conducting  his  contest  at  this  point, 
acting,  however,  simply  in  his  capacity  as  a  notary  public,  Colonel  Clay- 
ton himself  doing  the  legal  part  of  the  work,  advising,  however,  with 
Judge  John  McClure,  his  attorney,  at  Little  Rock.  The  other  man  was 
Mr.  E.  H.  Womack,  misspelled  in  the  testimony  and  index  as  VVamuck. 
He  was  a  salesman  for  a  pottery  concern,  was  at  Plummerville  on  busi- 
ness connected  with  his  concern,  was  stopping  that  night  at  the  same 
house  as  Colonel  Clayton  and  was  a  stranger  to  both  Clayton  and  All- 
nutt. Womack  is  said  to  be  a  Democrat.  The  testimony  of  these  two 
men  is  most  important  for  any  speculation  upon  the  case,  and  we  here 
insert  it : 

W.  D.  Allnutt,  called,  sworn,  examined,  and  testified. 
Direct  ex. : 

Q.  Where  do  you  reside? — A.  Clarksville,  Johnson  County. 

Q.  Where  were  you  on  the  night  of  January  29th,  1889  ? — A.  Plummerville. 

Q.  Where  had  you  heen  in  business  and  how  was  you  engaged  prior  to  that  day  ? — 
A.  I  had  been  down  there  taking  depositions  between  Clayton  and  Breckinridge. 

Mr.  Cooper.  Were  they  being  taken  before  you  or  were  you  acting  as  attorney  ? 

A.  I  was  notary  public  ;  they  were  being  taken  before  me. 

Mr.  McClure.  About  what  time  in  the  evening  did  you  and  Mr.  Clayton  get  your 
supper  ? 

A.  I  suppose  somewhere  about  7  o'clock. 

Q.  At  whose  place  did  yon  get  supper  T — A.  Mrs.  McCraven's. 

Q.  About  how  long  was  you  getting  your  sujiper  ? — A.  I  couldn't  tell  you  about 
that ;  I  didn't  pay  any  particular  attention  to  the  time ;  I  suppose  we  were  at  the 
table  about  as  long  as  it  usually  takes  a  man  to  eat  a  meal. 

Q.  15  or  20  minutes? — A.  Yes,  sir. 

Q.  Did  you  take  supper  at  Mrs.  McCraven's  house? — A.  Yes,  sir. 

Q.  After  you  got  your  supper  where  did  you  go  next? — A.  We  went  back  to  the 
front  room  where  we  were  before  and  where  Mr.  Clayton  was  killed. 

Q.  How  long  did  you  remain  there? — A.  We  remained  there  all  night. 

Q.  All  the  balance  of  the  evening  ? — A.  Yes,  sir,  excepting  a  few  minutes  when  I 
went  out  of  the  room  after  he  was  snot  and  sent  somebody  down  after  a  doctor. 

Q.  Do  you  know  a  man  named  Wamuck  ? — A.  Yes,  sir. 

Q.  Was  he  in  the  room  the  time  Clayton  was  shot? — A.  Yes,  sir. 

Q.  How  long  had  he  been  in  the  room  prior  to  the  shot? — A.  He  been  there  ever 
Biuce  supper  ;  he  went  in  about  the  time  we  did,  I  think. 

Mr.  Cooper.  Is  that  a  sort  of  a  sitting-room  for  the  house  as  well  as  a  bed-room  ? 

A.  Yes,  sir. 

Q.  That  is  the  reason  the  other  folks  were  in  there  as  well  as  him  ?— A.  Yes,  sir.  I 
will  not  say  Wamuck  came  in  with  us ;  it  is  possible  he  didn't  come  until  after  we 
had  been  to  supper,  but  I  am  under  the  impression  he  was  there  before  that. 

Mr.  McClure.  T&ll  how  you  spent  the  early  part  of  the  evening ;  what  were  you 
doing  after  supper  f 

A.  We  were  in  the  room  talking. 

Q.  Were  you  engaged  at  work  there  in  the  preparation  of  any  papers? — A.  I  was 
not. 

Q.  Was  he  ? — A.  I  don'*  remember  that  he  was  now. 

Q.  You  were  just  holding  a  casual  conversation  ?-t-A.  When  we  first  went  into  the 
room  after  sapper  I  sat  down  and  commenced  reading  a  paper,  and  I  think  I  read 
there  probably  15  or  20  minutes,  and  I  got  np  from  there  and  went  across  on  the  op- 


740  CLAYTON   VS.    BRECKINRIDGE. 

posite  side  of  the  fire-place,  and  Mr.  Wanmck  sat  down  in  tlie  chair  and  he  had  a 
little  memorandum  book  he  was  figuring  in. 

Q.  How  long  would  you  think  Wamuck  was  there  ? 

Mr.  Cooper.  There  is  a  diagram  Mr.  Wamuck  made  this  morning  which  is  in  use; 
it  shows  the  house  and  the  surroundings. 

Mr.  McCluke.  Is  tliis  paper  now  shown  you  approximately[a  correct  diagram  of 
the  house  of  Mrs.  McCraven  1 

A.  Yes,  sir ;  the  shape  of  the  house. 

Q.  And  the  surrounding  grounds  ? — A.  Yes,  sir. 

Q.  Mark  the  sitting-room,  dining-room,  and  Mrs.  Craven's  room,  etc.;  mark  them 
1, 2, 3, 4, 5, 6,  and  so  they  can  be  identified. 

(Witness  does  so.) 

Q.  Now,  about  what  time  in  the  evening  was  it  that  Mr.  Clayton  was  shot  I — A. 
Well,  sir,  as  near  as  I  can  get  at  it  it  was  about  10  minutes  before  8  o'clock. 

Q.  Before  8  T— A.  Yes,  sir. 

Q.  How  do  you  fix  the  time  ? — A.  I  started  to  tell  awhile  ago. 

Q.  Well,  go  on. — A.  When  we  first  came  out  from  supper  I  sat  down  to  the  table, 
took  a  newspaper,  and  read  there  probably  10  or  15  minutes,  or  maybe  a  little  longer; 
then  I  got  up  and  went  over  on  the  other  side  of  the  fire-place  and  Wamuck  sat  down 
and  figured  a  little  while,  probably  as  much  longer ;  then  when  he  got  up  to  walk 
across  to  the  fire-place  where  I  was  sitting  in  the  chair  I  got  up  and  invited  him  to 
take  a  seat,  and  I  went  over  on  the  other  side,  and  just  as  I  got  up  to  go  Mr.  Clayton 
was  shot,  and  I  am  satisfied  it  was  in  about  that  time.  I  gather  it  from  that,  and 
when  the  doctor  came  ap  there  the  fij'st  thing  was  to  take  out  Clayton's  watch  and 
look  at  it. 

Q.  Was  the  watch  going  ? — A.  Yes,  sir. 

Q.  What  time  of  day  was  it  by  the  watch  T — A.  5  minutes  after  8,  and  he  had  been 
dead  then,  I  suppose,  10  or  15  minutes. 

Q.  Who  was  in  the  house  when  he  was  shot ;  was  there  any  other  man  T— A.  There 
was  no  man  in  the  house  except  Mr.  Wamuck  and  myself;  Mrs.  McCraven's  grand- 
son had  gone  down  town;  Wamuck  was  a  stranger ;  I  didn't  feel  like  going  down  there. 

Mr.  Cooper.  You  had  no  watch  ? 

A.  No,  sir. 

Mr.  McClcre.  Wamuck  had  no  watch  T 

A.  I  don't  know  about  that.  I  went  into  Mrs.  McCraven's  room  and  took  a  lamp 
and  went  back  into  the  room  where  he  was,  and  about  the  time  we  got  back  in  these 
young  men  came  in,  and  so  we  sent  them  down  town  after  the  doctor,  and  by  the 
time  they  got  down  there  and  back  they  told  anybody  else  they  saw  that  Mr,  Clay- 
ton had  been  killed ;  they  went  down  there  and  got  Dr.  Allgood,  and  when  he  got  up 
there  Mr.  Clayton  had  been  dead,  I  suppose,  10  or  15  minutes. 

Q.  What  examination,  if  any,  was  made  that  night,  if  any? — A.  Out  of  doors,  do 
you  mean  ? 

Q.  Oh,  no  ;  but  in  the  house,  of  the  body. — A.  They  examined  the  body,  and  took 
what  he  had  on  his  person,  his  watch  and  money  and  papers  and  letters.  Dr.  All- 
good  look  them  off  and  turned  them  over  to  me ;  we  raised  him  up  from  where  he 
was  lying  in  the  blood  and  laid  him  over  a  little  closer  to  the  wall,  and  put  a  pillow 
or  something  under  his  head  and  put  a  sheet  over  him  and  let  him  lie  there  all 
night.  Some  of  them  suggested  that  we  take  him  up  and  put  him  on  the  bed,  but  I 
suggested  we  had  better  let  him  stay  where  he  was  until  the  inquest  was  held.  I 
told  them  1  thought  probably  it  would  be  better  to  let  him  stay  there  where  he  was 
until  the  coroners  jury  viewed  the  remains  or  until  somebody  would  come  and  take 
charge  of  it. 

Mr.  Maish.  If  I  understand  you  correctly  you  say  you  removed  the  remains  of  Mr. 
Clayton  t 

A.  Yes,  sir ;  we  just  picked  him  up  out  of  the  blood  and  laid  him  over  a  little  nearer 
to  the  wall. 

Q.  Did  you  take  him  off  of  the  chair  where  he  was  lying  T — A.  Yes,  sir ;  we  took 
his  feet  down  off  there  and  straightened  him  out,  took  his  shoes  off,  and  put  a  sheet 
over  him. 

Q.  And  that  was  done  on  your  suggestion  T — A.  Yes,  sir. 

Mr.  McClure.  Who  were  the  first  persons  that  came  to  the  house  after  the  firing ; 
that  is  strangers,  persons  who  were  not  in  the  house  when  it  occurred  ? 

A.  The  first  persons  came  in  there  was  Mrs.  McCraven's  and  son  or  stepson,  or  what- 
ever it  is,  and  another  young  man  that  was  boarding  there. 

Q.  How  long  was  it  after  that  shot  was  fired  until  they  came  to  the  house? — A.  I 
suppose  5  or  6  minutes. 

Q.  Was  it  as  much  as  that  ?— A.  I  guess  it  was ;  I  will  say  5  minutes  anyhow. 

Q.  Which  way  did  they  enter  that  house?— A.  They  came  in  through  that  side 
gate  at  the  back  end  of  the  house,  and  went  into  the  doorway  into  Mrs.  McCraven's 
room. 


CLAYTON   VS.    BEECKINRIDQE.  741 

Q.  Before  entering  the  house  in  the  manner  you  have  described  would  they  have 
to  pa88  the  window  through  which  Clayton  was  shot? — A.  No,  sir;  they  come  in  at 
the  otlier  end  of  the  house. 

Q.   Did  they  come  that  way  ? — A.  No,  sir. 

Q.  Of  that  you  are  positive?— A.  I  am  sure  of  that;  these  two  fellows  didn't. 
When  the  o'.  her  fellows  come  afterwards  they  come  in  arouud  that  way  as  well  as 
other  ways. 

Q.  When  these  two  young  fellows  went  down  after  the  doctor  and  they  told  the 
people  what  had  happened,  who  do  you  recollect  of  being  the  first  persons  that  re- 
turned up  to  the  house  ou  account  of  the  news  being  spread  down  town  ? — A.  Well, 
sir,  it  was  Dr.  Allgood,  and  I  don't  remember  who  else,  until  Mr.  Armstrong  come 
directly  a  few  miuutes  after  that. 
Q.  Gen.  Armstrong  ? — A.  Carroll  Armstrong. 

Q.  How  long  was  it  after  the  shooting  before  he  was  there  ? — A.  Carroll  Armstrong! 
Q.  Yes,  sir. — A.  I  suppose  it  was  20  miuutes,  and  maybe  a  little  longer— about  ^0 
minutes,  I  should  judge. 

<).  Now,  what  took  place  after  that  ? — A.  Well,  I  don't  kuow ;  Mr.  Armstrong  came 
there  and  he  and  I  sat  up  the  greater  part  of  the. night,  and  Mr.  Wamuck  sat  up 
awhile  with  us.  If  my  memory  serves  me  I  weut  to  bed  about  11  o'clock,  aud  I 
think  Mr.  Hobbs  came  up  there  and  Armstrong,  and  I  was  up  there  until  about  3 
o'clock  in  the  morning,  and  Mr.  Wamuck  and  Mr.  Hobbs,  and  Hobbs  and  this  young 
boy  was  staying  there, 

Q.  Was  there  any  dispatches  sent  off  that  night  at  your  instance  or  suggestion  ? — 
A.  Yes,  sir  ;  there  was  some  sent;  I  don't  remember  it  was  at  my  suggestion,  but  as 
soon  as  the  doctor  made  the  examination  of  Mr.  Clayton's  body  and  straightened  him 
out  Mr.  Armstrong  said  he  would  go  down  to  the  telegraph  ofiflce  and  telegraph 
some  of  his  Iriends,  and  he  asked  me  if  I  knew  where  Powell  Clayton  was,  and  I 
think  he  said  he  would  telegraph  to  Little  Rock  or  to  Washington,  and  he  went  and 
said  something  about  telegraphing  to  him,  and  I  understood  he  did  so. 

Q.  How  long  was  this  conversation  about  sending  off  the  dispatches  after  the  death 
of  Clayton  ? — A.  He  had  been  dead  then  half  an  hour. 

Q.  Mr.  Armstrong  then,  as  I  understand  you,  went  off  to  send  dispatches  ? — A.  Yes. 
Q.  How  long  was  he  gone  ? — A.  He  was  gone  some  considerable  time  ;  he  had  some 
trouble  about  finding  the  operator;  he  had  left  the  office — at  least  that's  my  impres- 
sion now.    When  he  came  back  he  told  me  he  had  to  go  to  the  operator's  house  or 
had  sent  somebody  there  after  him. 

Q.  Something  has  been  said  *bout  a  blanket  being  up  at  that  window  ? — A.  Yes, 
sir ;  Mr.  Armstrong  and  I  had  it  put  up  there ;  I  suggested  it,  that  we  were  both 
sitting  there,  and  I  called  his  attention  to  the  looks  of  the  window  and  that  curtain, 
and  I  said  I  didn't  like  it,  and  he  said  he  didn't  like  it  very  well  himself,  and  I  sug- 
gested that  something  ought  to  be  up  there.  And  I  went  oat  and  saw  Mrs.  McCra- 
ven,  and  she  came  in  with  a  blanket. 
Mr.  Cooper.  That  was  to  prevent  persons  from  seeing  in  ? 

A.  It  was  a  blanket  or  quilt,  I  forget  which,  and  I  think  Mr.  Wamuck  helped  me  to 
hang  it  up.    Yes,  sir ;  it  was  to  close  the  window  so  people  couldn't  see  in. 
Mr.  McClure.  You  put  it  up  over  the  window  ? 
A.  Yes,  sir. 

Q.  What  time  of  night  was  it  hang  up  ? — A.  I  don't  know;  perhaps,  an  hour  and  a 
half  after  Clayton  was  killed. 

Q.  Something  has  been  said  about  that  window  curtain  that  was  there  before  yoa 
put  up  the  blanket  across  it ;  state  whether  that  was  a  perfect  curtain  ? — A.  Yes, 
sir,  it  was  a  calico  curtain,  a  thin  curtain,  but  there  was  no  holes  in  it.  It  was  one 
of  those  curtains  strung  on  a  string  at  the  top  of  the  window  aud  the  curtain  slide 
back  and  forth  on  the  string ;  there  was  two  curtains,  one  slides  one  way  and  the 
other  the  other,  and  they  separated  in  the  middle,  leaving  a  little  crack. 
Q.  It  didn't  cross  all  the  way  ? — A.  No,  sir. 

Q.  It  was  in  a  condition  that  persons  on  the  outside  could  see  through  the  cur- 
tain ? — A.  Yes,  sir;  but  I  didn't  notice  until  after  the  shooting. 

Q.  What  sort  of  a  hole  was  made  in  the  curtain  by  that  shot  ? — A.  I  suppose  it  was 
ii  hole  tore  in  one  edge  of  it;  probably  I  could  put  my  fingers  through  it  that  way. 
[Buuched  together.] 

Q.  What  took  place  the  next  morning  now,  so  far  as  making  examinations  as  to 
tracks  was  concerned  ? — A.  The  first  thing  next  morning  when  I  got  up,  about  sun- 
rise or  a  little  before,  it  is  my  impression  Mr.  Wamuck  went  with  me,  and  I  went 
out  to  look  for  tracks.  I  first  called  Mr.  Armstrong  and  woke  him,  and  said  we 
would  go  out  and  see  if  we  could  see  any  of- these  tracks,  and  after  he  had  dressed 
he  made  the  remark  he  would  go  down  to  the  telegraph  office  and  see  if  any  tele- 
grams had  come  for  him,  and  for  me  to  go  out  and  look  for  tracks,  and  I  think  Mr. 
Wamuck  went  with  me,  and  part  way  anyhow.  He  was  out  to  that  gate  and  went 
in  through  the  gate.    I  don't  remember  now,  but  think  he  went  back  to  the  liouse, 


742  CLAYTON    VS.    BRECKINRIDGE. 

and  I  weat  out  there  to  tbat  hole  where  they  come  through,  and  there  I  turned 
around  and  came  back. 

Q.  What  did  you  see  in  the  way  of  tracks? — A.  I  saw  some  tracks  of  two  men 
coming  in  and  two  men  going  out. 

Q.  Bo  they  returned  by  the  same  path  they  came  in  ? — A.  Yes,  sir ;  they  Went  right 
back  the  same  way,  but  they  didn't  strike  the  same  place  in  the  fence.  One  of  them 
ran  right  against  the  fence  and  knocked  off  a  picket  or  two  from  the  looks  of  the 
hole  ;  he  had  rnn  over  something  and  fell  through  the  hole. 

Q.  There  was  a  hole  in  the  fence  ?  Was  that  hole  made  prior  to  that  time  f — A. 
Yes,  sir  ;  there  was  an  opening  in  the  fence  before  that  I  think. 

Q.  When  they  went  away  from  the  house  they  didn't  seem  to  strike  the  same 
place? — A.  No, sir;  one  of  them  struck  the  opening  in  the  fence,  and  the  other 
didn't ;  he  struck  the  fence. 

Q.  One  of  them  made  his  exit  through  the  hole  where  he  came  in? — A.  Yes,  sir. 

Q.  And  the  other  one  went  through  where  he  knocked  the  pickets  off? — A.  Yes,  sir. 

Q.  You  didn't  go  beyond  the  garden  fence? — A.  No,  sir;  I  didn't  go  over  on  the 
other  side. 

Q.  Where  did  yon  go  then  ? — A.*  I  went  back  to  the  house. 

Q.  It  is  said  there  is  another  window  in  the  room,  and  some  steps  or  marks  were 
fonnd  about  that  end  of  the  house  also  ? — A.  Well,  the  two  windows  are  right  close 
together,  one  at  the  end  of  the  house  and  the  other  at  the  side  of  it.  One  is  here  [in- 
dicating], and  the  other  is  right  around  the  corner.  I  didn't  see  any  steps  under  the 
window,  but  I  seen  the  place  out  by  a  little  tree. 

Q.  Some  persons  seem  to  have  been  standing  at  that  little  tree? — A.  Yes,  sir. 

Q.  Were  those  tracks  by  the  tree  independent  tracks  or  were  they  the  same  ? — A. 
No,  sir.;  them  tracks  were  the  tracks  that  went  out  through  the  little  gate. 

Q    Were  they  all  the  same  tracks? — 'A.  Yes,  sir;  they  were, 

Q.  Were  you  before  the  coroner's  inquest  ? — A.  Yes,  sir. 

Q.  In  what  capacity  did  you  act  there  that  day,  if  any  ? — A.  The  day  after  Clayton 
was  killed  ? 

Q.  Yes,  sir. — A.  Not  any. 

Q.  Who  wrote  the  testimony  was  taken  at  the  coroner's  inquest  ? — A.  I  couldn't 
tell  you. 

Q.  Did  you  ? — A.  I  got  the  impression  I  wrote  down  some  of  it,  maybe — I  believe  I 
did.  After  we  went  down  to  the  house  where  we  took  the  depositions  I  think  I  wrote 
part  of  it. 

Q.  Can  you  tell  how  many  witnesses  were  examinecT there  that  day  ? — A.  No,  sir. 

Q.  Were  yon  ? — A.  Yes,  sir. 

Q.  But  you  don't  know  who  else  was  ? — A.  No,  sir. 

Q.  About  what  time  were  the  duties  of  the  coroner  completed  ? — A.  Somewher* 
about  10  or  11  o'clock,  or  maybe  later. 

Q.  Was  the  inquest  concluded  before  W.  H.  H.  Clayton  got  up  there  with  the  cof- 
fin?— A.  I  think  so. 

Q.  That  is  your  imiiression?— A.  That  is  my  impression. 

Mr.  Cooper.  Do  you  know  how^  heavy  that  load  was;  was  it  a  shotgun  and  shot? 

A.  It  was  loaded  with  powder  and  buck-shot.     I  don't  know  what  the  gun  was. 

Q.  Whereabontsdidit  hithim? — A.  Right  under  the  ear  ;  right  there  [indicating]. 

Q.  Do  you  know  how  many  buck-shot  entered  his  neck  there  ? — A.  No, sir;  I  don't 
know  how  many  there  were  and  I  did  hear  Mr.  Cook,  the  undertaker,  say  too.  I 
don't  think  he  found  the  whole  lot.  I  think  some  buck-shot  was  in  his  body  when 
he  was  taken  away  ;  it  nearly  shot  his  ear  off,  it  was  hanging  by  the  skin. 

Q.  Did  Wamuck  state  that  his  first  impression  was  the  lamp  had  exploded? — A. 
Yes,  sir;  he  said.  My  God,  that  lamp  has  exploded  and  killed  Mr.  Clayton.  And  I 
said  to  him,  some  fellow  had  shot  him  through  the  window.  I  used  a  very  ugly 
word. 

Q.  He  said  you  used  the  word,  "  as  I  expected."  Did  you  say  that  ?— A.  I  don't 
remember  about  that,  but  it's  very  probable  I  did  say  it. 

Q.  Did  you  have  any  reason  to  expect  or  to  suspect  he  would  be  shot  ? — A.  No,  sir; 
but  I  felt  just  all  the  time  I  was  down  there  that  it  was  a  dangerous  iiiece  of  busi- 
ness ;  I  can't  tell  why,  but  I  felt  that  way. 

Q.  Where  did  you  live  at  that  time  ?— A.  I  lived  up  at  Morrillton  at  that  time. 

Q.  Where  did  you  sleep  that  night  ? — A.  I  slept  there  in  the  room  where  Mr.  Clay 
ton's  body  was  lying. 

Where  did  Mr.  Wamuck  sleep  t — ^A.  Now,  I  can't  say  whether  Wamuck  slept  in  the 
room  or  whether  he  slept  in  that  little  hall  room  in  the  bed  where  Mr.  Clayton  had 
been  sleeping;  I  am  under  the  impression  he  slept  in  that  hall  room. 

Q.  How  many  other  people  slept  in  that  house  on  that  night  ? — A.  There  was  ray- 
self,  Mr.  Armstrong,  Mr  W^amuck,  Mrs.  McCravens'  grandson,  and  another  young 
man,  I  do  not  know  his  name,  and  I  thmk  he  stayed  there  and  Mr.  Hobbs. 


CLAYTON   VS.    BRECKINRIDGE.  743 

Mr.  Bergen.  Will  you  put  on  this  map  the  window  through  which  he  was  shot; 
put  a  "  W"  right  in  that  place  on  this  diagram! 

(Witness  does  so.) 

Q.  Now  be  kind  enough  to  pnt  on  the  map  the  letter  "  P  "  at  the  x>lace  where  the 
pistol  was  found,  if  you  can  tell  usf 

(Witness  does  so.) 

Q.  Now  is  tliere  anything  between  the  pistol  and  the  window? — A.  Yes,  there  ia 
two  fences  there. 

Q.  Something  has  been  said  about  some  paling  that  were  broken  off? — A.  Yes. 

Q.  How  near  was  that  to  where  the  pistol  was  found  ? — A.  The  pistol  was  found 
right  on  tlie  opposite  side  of  the  fence  across  where  the  paling  was  broken.  1  wasn't 
there  and  didn't  see  where  it  was  picked  up,  but  I  know  where  it  was  fouud. 

Q.  Mr.  Coblentz  was  the  man  that  picked  it  up  ? — A.  Yes,  sir. 

Q.  There  are  two  crosses  there  to  the  right  seemingly  in  the  fence  ? — A.  That  near- 
est one  to  the  house  is  tlie  gate  to  the  garden.  Where  the  other  crossed  out  in  the 
lane  is  where  the  follow  stumbled  against  the  fence. 

Q.  And  seemingly  dropped  the  pistol  just  beyond  it  ? — A.  Yes,  sir. 

Q.  You  have  made  little  marks  there  ? — A.  That  represents  the  pickets.  The  pick- 
ets on  the  fence ;  it  is  a  picket  fence. 

Q.  But  these  little  dots  ?  Do  those  represent  the  tracks? — ^A.  They  representthe 
tracks;  that  is  the  road  they  came  in  and  went  out. 

Q.  Up  beyond  here  put  an  "  R"  where  the  rose-bush  was? — A.  It  wasn't  a  rose- 
bush, it  was  a  cedar-tree.     There  was  several  of  them  about  in  this  yard. 

Q.  Why  did  they  seem  to  have  skulked;  is  that  right? — A.  Yes,  sir. 

Q.  Well,  put  that  there  ? — A.  I  will  just  write  the  word  tree  there. 

Q.  Now,  who  had  called  on  Mr.  Clayton  that  night? — A.  Up  there  at  the  house  ? 

Q.  Yes,  sir. — A.  No,  sir;  there  had  been  no  one  to  see  him. 

Q.  Where  were  yon  going  to  take  testimony  ? — A.  We  was  continuing  it  the  next 
morning ;  we  had  been  at  it  for  3  or  4  days. 

Q.  Whose  testimony  was  you  going  to  take  next  day  ? — A.  I  don't  know,  sir;  I  was 
only  the  notary.  Mr.  Armstrong  and  Mr.  Clayton  was  taking  the  investigation  and 
they  never  said  anything  about  what  they  would  put  on  the  stand. 

Q.  The  records  show  what  you  have  taken? — A.  Yes,  sir. 

Q.  Was  this  room  the  room  in  which  you  were — who  was  going  to  sleep  in  that 
room  ?--A.  That  night  ? 

Q.  Yes. — A.  I  don't  know,  sir;  I  was  not,  and  neither  was  Mr.  Clayton.  Mr.  Clay- 
ton slept  in  the  hall  room— in  the  little  room — and  Mrs.  McCraven  came  in  there  just 
after  supper  and  said  to  me  I  could  sleep  with  Mr.  Clayton,  and  I  told  her  I  was  rather 
a  bad  bedfellow  and  that  I  would  probably  annoy  him,  and  I  would  rather  she 
would  arrange  me  a  bed  somewhere  else  ;  she  said  she  would ;  and  there  was  a  little 
shed  room  there  was  closed  in,  and  she  went  in  there  and  prepared  nie  a  bed  tliere, 
and  that  is  where  I  was  going  to  sleep,  but  I  didn't  sleep  there. 

Q.  Was  Mr.  Wamuck  going  to  sleep  there  ? — A.  Yes,  sir. 

Q.  Then  he  was  going  to  sleep  in  one  end  of  the  room  and  yourself  in ? — A. 

Yes,  sir. 

Mr.  Maish.  Was  there  any  dog  about  the  house? 

A.  No,  sir. 

Mr.  McClure.  Did  you  know  a  man  by  the  name  of  Cap.  Matthews  t 

A.  Yes,  sir. 

Q.  The  Cap.  Matthews  sytoken  of  by  Mr.  Sater  hero  as  being  one  of  the  men  that 
Hooper  claims  to  have  killed?  Do  you  know  when  Matthews  departed  this  life? — • 
A.  Yes,  sir;  I  believe  I  do.     I  remember  the  circumstances  of  his  death. 

Q.  In  what  year  was  it  ?  —A.  To  the  best  of  my  recollection  that  was  in  1878  or  1879, 1 
said  it  was,  but  1  believe  I  am  mistaken  about  that.  I  have  got  the  matter  fixed  in  my 
mind  and  I  know  very  well  where  he  was  killed  at. 

Q.  Where  was  he  killed? — A.  At  Pcrryville.  Th«y  had  him  indicted  down  there  at 
one  time  for  something  concerning  the  murdfer  of  old  man  Hooper;  I  think  he  was  in- 
dicted at  the  time  Charley  Reed  was  prosecuting  attorney. 

Q.  Was  Matthews  killed  in  the  day-time  or  night-time? — A.  In  the  night-time. 

Q.  Did  you  know  this  Thomas  Hooper  that  went  to  California  ? — A.  Yes,  sir;  I  went 
to  Louisville  the  same  time  he  went  to  Cal. 

Q.  What  year  was  that?— A.  In  1870. 

Q.  How  many  years  do  you  know  Hooper  had  been  gone  when  Matthews  was 
killed  ? — A.  He  ii'ent  in  1870,  and  I  think  Matthews  was  killed  along  in  ln76,  1877, 
1878,  or  1879. 

Q.  Anyway  this  was  some  years  after  Hooper  had  left  the  country  ? — A.  Yes,  sir. 

Q.  Do  yon  know  a  man  by  the  name  of  N.  N.  Conway  who  got  killed  ? — A.  No,  sir ; 
I  was  only  told  of  a  man  got  killed  by  that  name. 

Q.  Did  you  know  a  man  by  the  nameof  Capt.  Gibbon  or  some  such  name  as  that  T— 
A.  Yes,  sir. 


744  CLAYTON   VS.    BEECKINEIDGE. 

Q.  Do  you  know  whether  he  died  before  or  after  Hooper  left  this  country  to  go  to 
Cal.  ? — A,  Gibbons  died  after  that. 

Q.  Long  after  that  t — A.  Yes,  sir. 

Q.  Something  has  been  said  about  Mr.  Hooper  having  beenhnng;  did  you  know 
Mr.  Hooper  in  his  life-time  T — A.  The  old  man  t    I  have  seen  him. 

Q.  Did  you  know  him  ? — A.  I  can't  say  that  I  knew  him. 

Q.  Did  you  know  him  by  sight? — A.  Yes,  sir;  Hooper  was  killed  in  1868.  I  went 
down  there  in  that  year.  I  came  to  this  country  with  C.  C.  Eeed.  Reed  seems  to 
have  known  Mr.  Hooper  or  had  met  him ;  I  don't  remember  where  it  was,  but  it 
was  at  the  landing  on  the  river  here  some  place,  and  went  up  there  over  on  a  steam- 
boat. I  wrote  to  his  mother  after  that,  and  told  her  he  was  shot,  and  I  knew  it  to 
be  the  old  man  Hooper  at  that  time.  I  didn't  live  in  this  country  then.  I  went  up 
to  Johnson  County,  the  place  where  I  live  now,  and  the  place  where  I  was  when 
Hooper  was  killed. 

Q.  Do  you  know  how  he  met  his  death  ? — A.  Well,  I  have  always  been  under  the 
impression  or  told  that  the  militia  killed  him. 

Q.  Then  he  wasn't  hung  t — A.  I  don't  know  how  they  killed  him — whether  they 
shot  him  or  hung  him. 

Mr.  Maish.  You  are  a  lawyer  T — A.  Yes,  sir. 

Q.  How  long  have  you  beeu  a  lawyer? — ^A.  I  was  admitted  to  the  bar  in  1868  as 
well  as  I  remember. 

Q.  You  were  a  personal  friend  of  John  M.  Claytou  in  his  life-time  ? — A.  Yes,  sir;  I 
suppose  you  can  say  that  I  was.     But  I  had  never  met  him  very  frequently. 

Q.  Both  members  of  the  same  political  party  and  of  the  same  political  sympathy? — • 
A.  I  suppose  so,  sir. 

Q.  You  was  engaged  at  that  time  taking  depositions  for  him  ? — A.  Yes,  sir. 

Q.  You  was  in  attendance  at  the  coroner's  inquest  all  the  time,  was  you,  whilst 
it  was  going  on  ? — A.  Yes,  sir. 

Q.  How  many  j  urors  composed  the  inquest  ? — A.  I  don't  remember  now  whether  we 
had  12  or  not. 

Q.  What  is  your  best  recollection  ? — A.  My  best  recollection  is  there  was  12  of 
them. 

Q.  Where  were  they  selected  from  ? — A.  From  amoug  the  citizens  there  at  Plum- 
merville. 

Q.  In  the  town  of  Plummerville  ? — A.  Yes,  sir ;  there  may  have  been  one  or  two 
men  on  the  jury  from  the  country. 

Q.  Do  you  remember  who  they  were? — A.  Why,  no;  1  couldn't  tell  you  now;  I 
know  several  of  them. 

Q.  Mention  those  you  remember. — A.  lean  not  remember  their  names  now;  what 
I  mean  to  say  is  I  know  several  of  the  names  who  lived  there,  but  I  can't  remember 
now  who  they  were. 

Q.  Were  there  a  great  many  people  there  ? — A.  Yes,  sir. 

Q.  Whilst  the  inquest  was  going  on  f — A.  Yes,  sir  ;  there  was  a  large  crowd  there. 

Q.  All  the  time? — A.  I  think  so.  Yes,  sir;  there  was  a  great  many  people  around 
the  house,  and  a  great  many  came  to  the  hall  and  about  the  room  where  they  could 
be,  and  after  adjournment  we  left  the  house  and  went  to  the  hall. 

Q.  There  was  a  great  many  at  the  house  when  Mr.  Clayton  was  killed  in  the  first 
place  ? — A.  Yes,  sir. 

Q.  How  many  ? — A.  I  suppose  at  one  time — there  was  over  100  people  at  one  time,  I 
reckon. 

Q.  How  many  people  did  you  see  at  the  inquest  down  there? — A.  I  don't  remem- 
ber. 

Q.  Will  you  state  if  there  were  about  2,000  at  the  house,  do  you  think? — A.  Well, 
there  was  a  large  crowd  there  all  day, 

Q.  As  many  as  100  ? — A.  Yes,  sir ;  half  the  colored  people  of  the  township  were 
there. 

Q.  Were  there  a  great  many  white  people? — A.  I  don't  think  there  was;  that's  not 
my  recollection. 

Q.  Were  there  not  white  people  there? — A.  Yes,  sir;  some  white  men  there. 

Q.  Were  there  some  white  men  at  the  house  If — A.  Yes,  sir. 

Q.  In  the  crowd  there  ? — A.  Yes,  sir. 

Mr.  Lacey.  Do  you  remember  who  those  white  men  were? 

A.  No,  sir  ;  I  don't. 

Mr.  McCain.  How  many  people  gathered  in  there  that  night  of  the  killing? 

A.  Nearly  everybody  in  Plummerville  gathered  in  there  that  night. 

Q.  Was  the  house  packed? — A.  Yes,  sir;  the  house  was  full.  They  came  in  there 
and  looked  around  there  until  we  laid  Mr.  Claj'ton  out  and  covered  him  up,  and  they 
all  went  off. 

Q.  Except  you  watchers? — A.  Yes,  sir. 

Q.  Four  of  you  watched  f — A.  Yes,  sir. 


CLAYTON   VS.    BRECKINRIDGE.  745 

Q.  Was  there  anythingthat  could  be  done  that  you  all  conld  have  done  there  that 
night  that  you  did  not  do? — A.  I  don't  know  anything  else  that  I  could  have  done. 

Q.  Did  everybody  else  do  everything  that  you  thought  they  might  have  done  ? — 
A.  I  think  bo.  Wo  notified  the  authorities.  Mr.  Armstrong  telegraphed  to  the 
sheriff  or  clerk  or  some  of  them  up  at  Morrilltou  ;  notified  them;  notified  the  gov- 
ernor and  I  think  notified  Mr.  Clayton. 

Q.  Was  there  any  courtesies  or  assistance  among  the  citizens  there  in  anything 
you  needed  done  ?  I  don't  mean  in  regard  to  authorities,  but  about  the  house'  there 
that  night  or  the  next  morning.  Did  you  have  any  help?— A.  Oh,  yes;  there  was 
nothing  to  do  but  lay  him  out  of  that  blood  and  lay  him  back  against  the  wall. 
While  the  people  were  up  there  I  didn't  see  any  indications  from  any  of  them  at  all 
that  they  would  object  to  helping. 

Q.  Well,  the  people  seemed  to  be  interested  in  the  ocourrence  there? — A.  Well, -I 
don't  know ;  they  wouldn't  talk  much  about  it. 

Q.  They  would  not  talk  much  about  it?— A.  No,  sir. 

Q.  They  gathered  about  there  quite  a  large  crowd,  you  say? — A.  Yes,  sir;  the 
people  right  there  in  Plumraerville  seemed  to  be  very  reticent  about  it  and  would 
not  talk. 

Q.  You  were  a  little  reticent  yourself,  were  you  not  ? — A.  Yes,  sir. 

Q.  Were  they  any  more  reticent  than  vou  ? — A.  I  don't  know  that  they  were.  I 
didn't  talk. 

Q.  Well,  didn't  you  get  the  impression  of  it,  and  didn't  you  have  an  impression 
there  that  you  needed  to  act  with  some  prudence  to  be  there  at  that  time  ? — A.  Yes, 
sir. 

Q.  But  so  far  as  taking  care  of  and  looking  after  Col.  Clayton  was  concerned  there 
was  no  backwardness  about  that  on  the  part  of  anybody  ? — A.  No,  sir ;  none  that  I 
saw, 

Q.  This  old  lady  you  were  stopping  with,  did  she  seem  to  be  a  poor  old  lady,  or  well- 
to-do  ? — A.  Well,  she  was  rather  a  poor  woman. 

Q.  Didn't  fix  up  in  much  style  ? — A.  No,  sir. 

Q.  Well,  were  the  colored  people  attentive  about  there  ? — A.  Yes,  sir. 

Q.  Did  Judge  Clayton  or  Gov.  Clayton  send  any  of  you  any  telegrams  of  any 
kind  ? — A.  He  didn't  send  any  to  me.  I  don't  know  whether  there  was  any  sent  to 
Mr.  Armstrong  or  not.  There  was  no  telegrams  sent  in  my  name.  He  done  all  the 
telegraphing. 

Q.  What  time  of  day  did  you  have  that  inquest  ? — A.  We  commenced  it  in  the 
morning. 

Q.  What  time  did  you  get  through  ? — A.  I  was  asked  that  awhile  ago,  and  gave  it 
about  11  o'clock ;  but  I  wish  to  state  I  suppose  it  was  about  10  o'clock  or  11  when  we 
commenced. 

Q.  What  time  of  day  did  you  get  through  ? — A.  I  suppose  it  was  an  hour  or  two 
hours. 

Q.  You  hadn't  got  through  when  the  train  arrived? — A.  I  don't  know  whether  we 
had  or  not,  but  it  seems  to  me  we  had ;  but  I  am  not  sure  of  that. 

Q.  What  was  the  reason  you  didn't  go  to  the  train  that  day  ?— A.  Me  ? 

Q.  Yes,  sir. — A.  I  don't  remember  why  it  was  I  didn't  go. 

Q.  You  didn't  go  to  meet  Judge  Clayton? — A.  No,  sir;  I  didn't  go  to  the  train. 
And  that  makes  me  think  now  whether  they  hadn't  got  through  with  the  inquest 
when  the  train  come,  but  I  can't  remember  about  that.  I  don't  remember  what  1  was 
doing  at  the  time  the  train  came. 

Q.  Youknow  you  was  there  andyou  did  not  meet  him? — A.  No,  sir;  I  did  not. 

Q.  Andyou  think  you  was  there  and  taking  testimony  ? — A.  Yes,  sir;  I  think  so 
now. 

Q.  Were  you  engaged  after  the  coroner's  jury  had  rendered  its  verdict  to  put  mat- 
ters in  shape  and  kept  you  longer  than  you  would  have  been  ? — A.  It  seems  to  me  that 
I  wrote  some  after  that.  I  picked  up  a  pencil  and  wrote  some  for  the  coroner,  but  I 
do  not  remember  what. 

Q.  Who  was  on  that  jury  ? — ^A.  I  couldn't  name  a  man  that  was  on  it;  I  knew  sev- 
eral of  the  men,  but  I  can't  tell  now. 

Q.  See  if  yon  can't  call  some  of  them ;  who  summoned  the  jnry  ? — A.  I  think  Mr. 
Bently  summoned  the  jury.  Yes,  sir ;  I  remember  one  man  was  on  there  is  man  named 
Patterson  was  on  the  jury,  and  a  man  named  Pate,  Robert  Pate,  and  probably  a  man 
named  Sagg  was  on  it.     I  am  not  sure  about  him,  but  I  rather  think  he  was. 

Q.  Is  that  all  you  remember  now  ? — A.  Yes,  sir. 

Q.  Your  impression  is  they  were  Plummerville  people? — A.  Yes,  sir;  there  might 
have  been  one  or  two  or  two  or  three  from  the  country;  that  man  Sagg  I  think  was 
from  the  country  and  perhaps  two  or  three. 

Q.  Were  they  all  white  ?— A.  I  think  there  were  some  colored  men  on  it,  is  my 
recollection  now. 


746  CLAITON   VS.    BKECKINKIDGE. 

Q.  Who  were  the  colored  men  ? — A.  I  couldn't  say;  I  don't  know  <hat  I  knew  iiuy 
of  them. 

Mr.  McCain.  Could  you  get  any  information  before  the  coroner's  jury  at  all  as  to 
who  he  was  killed  by  f 

A.  No,  sir. 

Q.  Or  how  it  happened? — A.  No,  sir. 

Q.  You  couldn't  learn  anything  yourself  on  that  question f — A.  No,  sir. 

Q.  Well,  did  the  people — did  any  of  them  seem  to  have  any  opinion  about  that — 
the  people  that  lived  out  there  ? — A.  I  didn't  talk  to  but  one  or  two  men  about  it,  and 
they  didn't  have  any  opinion. 

Q.  You  didn't  talk  with  them  f — A.  No,  sir ;  they  didn't  seem  to  want  to  talk,  and 
I  didn't  talk  much  either. 

Q.  Is  that  the  only  reason  why  they  were  reticent — because  you  didn't  want  to 
talk  ? — A.  I  don't  know  that  it  was;  I  couldn't  tell  you. 

Q.  Why  didn't  you  want  to  talk  to  them? — A.  1  didn't  want  to  talk  about  that 
matter;  that  is,  simply  because  I  was  afraid  to  talk  al^out  it  was  why. 

Q.  Well,  neither  yon  nor  anybody  else  seemed  to  have  any  opinion  about  how  that 
crime  was  perpetrated  or  who  perpetrated  it,  and  could  get  no  information  about 
it  ? — A.  No,  sir;  I  got  no  information  and  got  no  opinion,  and  I  am  (satisfied  if  J  had 
went  to  any  mau  in  Pluramerville  and  asked  him  if  he  knew,  I  don't  think  he  would 
have  said;  and  I  don't  suppose  anj'  man  in  I'lummerville  knew. 

Q.  Well,  that  wasn't  very  remarkable ;  they  would  be  backward  in  saying  who 
they  thought  did  it  if  they  didn't  know? — A.  That  is  my  idea;  they  thought  so. 

Q.  It  was  just  prudence  that  everybody  exercised  on  such  occasions  ? — A.  I  thought 
it  was  a  fact  that  they  didn't  know. 

Mr.  Bkrgen.  You  were  away  from  home  ? 

A.  Yes,  sir. 

Q.  Where  is  your  home? — A  I  lived  at  that  time  in  Morrillton,  and  that  was  the 
first  night  I  had  ntaid  down  there.  I  had  been  riding  down  there  on  horseback  and 
going  back  at  night,  and  Mr.  Clayton  suggested  I  should  stay  all  night  with  him,  and 
we  could  get  to  work  that  much  earlier.     I  didn't  want  to  stay  anyway. 

After  the  introduction  of  testimony  for  contestee  from  Augusta  precinct,  Woodruff 
County,  the  committee  adjourned  to  9  o'clock  a.  m.  May  7,  1890. 

The  following  is  the  testimouy  of  Womack  : 

E.  H.  Wamuck,  called,  sworn,  examined,  and  testified. 

Direct-ex. : 

Q.  Where  do  you  reside  ? — A.  I  live  out  here  in  Benton,  Saline  County. 

Q.  Were  you  in  Plummerville  on  the  29th  of  January,  1889? — A.  Yes,  sir. 

Q.  What  time  in  the  evening  did  you  go  there  f — A.  I  think  it  was  about  7  o'clock 
at  night ;  just  about  dusk. 

Q.  By  what  species  of  conveyance  did  you  go  there  ? — A.  I  came  down  on  a  freight 
from  Rose  He. 

Q.  Where  did  you  go  when  you  got  there  ? — A.  I  went  to  Mr.  Simms's  hot«l. 

Q.  How  long  did  you  remain  there  ? — A.  I  wanted  to  get  a  bed  and  sleep,  and  Simms 
told  me  his  beds  were  all  taken  up  and  he  didn't  have  any  bed  for  me,  and  he  told  me 
where  I  mi;;ht  go  over  t'j  Mrs.  McCraven's.     I  went  straight  across  to  where  Mr. 

H kept,  and  went  to  go  across  the  creek  on  a  log,  and  I  went  back  down  and  got 

a  man  to  show  me  the  way  up  there,  some  time  about  dark. 

Q.  What  time  in  the  night  did  you  get  to  Mrs.  McCraven's  house  ? — A.  I  think  it 
was  about  7  o'clock,  or  a  little  after  7.  I  know  it  was  pretty  late  when  the  train  got 
up  there. 

Q.  Did  you  get  supper  then  ? — A.  No,  sir. 

Q.  Where  did  yon  get  supper  then  ? — A.  I  got  it  from  Mrs.  McCraven. 

Q.  How  long  after  you  got  there  until  you  got  supper? — A.  Just  a  few  minutes. 
She  told  me  she  would  fix  me  supper.     They  had  all  been  to  supper. 

Q.  She  did  dx  yovi  up  some  supper? — A.  Yes,  sir. 

Q.  After  you  got  your  supper  where  did  you  go? — A.  I  went  into  the  room  where 
Allnutt  and  Mr.  Clayton  was. 

Q.  Had  you  been  in  the  room  in  the  early  part  of  the  evening  ? — A.  No,  sir. 

Q.  Your  first  appearance  there  was  after  supper? — A.  Yes,  sir. 

Q.  Were  you  acquainted  with  either  of  these  people  ? — A.  No,  sir. 

Q.  Were  you  introduded  to  either  of  them  ? — A.  Well,  not  in  there ;  there — they  w^as 
busy  talking.  Mrs.  McCraven  said  she  would  introduce  me  to  them,  but  they  was 
busy  talking,  and  I  just  sat  down  ;  I  didu't  have  anything  to  saj'. 

Q.  Did  you  know  either  of  them  at  that  time  ? — A.  No,  sir. 

Q.  They  were  both  strangers? — A.  Yes,  sir:  but  I  had  learned  their  names;  Mrs. 
McCraven  had  told  me  at  supper  that  Mr.  Clayton  and  Mr.  Allnutt  were  there;  she 
told  me  she  would  go  in  there  and  introduce  them,  bat  they  was  busy. 


CLAYTON   VS.    BEECKINRIDGE.  747 

Q.  What  were  they  doing  ? — A.  I  believe  then— I  don't  think  they  was  doing  any- 
thing but  just  sitting  talking.  They  was  very  busy  at  their  books,  maybe,  and  was 
sitting  down.  I  was  sitting  down  near  the  table  and  Mr.  Allnutt  and  Mr.  Clayton 
was  close  to  me,  and  they  were  talking. 

Q.  How  long  did  they  remain  in  that  position  ? — A.  I  don't  remember,  but  I  think 
Mr.  Clayton  got  up  and  Mr.  Allnutt  picked  up  a  paper  and  was  reading  a  paper. 

Q.  Sitting  near  the  window? — A.  Sitting  near  the  table  where  the  lamp  was,  right 
close  the  window. 

Q.  How  long  did  they  remain  there  at  the  table  ? — A.  Well,  I  don't  know  exactly  ; 
within  some  20  or  30  minutes,  maybe  longer;  I  couldn't  tell  exactly. 

Q.  What  was  Clayton  doing  during  that  interval? — A.  Well,  now  I  think  I  know 
he  was  walking  the  floor  for  some  time. 

Q.  Was  he  talking  to  anybody? — A.  Yes,  sir;  he  was  taking  to  Mr.  Allnutt  as  he 
walked. 

Q.  Was  any  portion  of  their  conversation  addressed  to  you  ? — A.  No,  sir. 

Q.  What  did  he  appear  to  be  taking  to  Allnutt  about  ? — A.  Well,  he  was  talking 
about  the  election,  in  the  conversation,  one  thing  and  another  in  Conway  Co.  Well, 
Allnutt  was  telling  him  how  they  had  conducted  the  election. 

Q.  In  that  tp.  or  some  other? — A.  In  that  tp.  I  don't  know  of  any  other,  but  I 
thiuk  may  be  somebody  spoke  about  Woodruff;  I  paid  no  attention. 

Q.  Where  did  you  say  Allnutt  was  sitting? — A.  By  the  table  near  the  window. 

Q.  About  how  late  in  the  evening  was  Allnutt  sitting  reading  the  paper? — A. 
Well,  I  expect  it  was  something  like  half  after  7  maybe.  Of  course  it  may  not  be 
just  correct,  but  something  a  little  after  or  half  after  7  when  I  went  in  there,  and  I 
sat  down  there  and  they  sat  and  talked  some,  and  Clayton  got  up  and  Allnutt  got 
the  paper  and  sat  down  and  was  reading.  He  was  sitting  down  there  reading  a  news- 
paper. 

Q.  Well,  what  then  ? — A.  Well,  I,  after  I  sat  a  while  I  said  I  had  some  writing  to 
do,  had  some  figuring  to  do.  My  business  was  stoneware  business,  and  I  had  de- 
livered some  of  my  wares  at  Russell,  and  was  shipping  some  back  from  Plummer- 
ville  to  Russell  and  had  to  go  back  there  to  collect,  and  get  down  next  day  to  Little 
Rock.  I  had  some  figuring  to  do,  and  when  he  got  up  I  sat  down  and  was  figuring 
some  20  or  30  minutes,  and  was  writing.  It  was  about  9  o'clock  and  I  was  tired  and 
I  concluded  to  go  to  bed.  During  that  time  I  was  there,  almost  all  the  time,  Mr.  Clay- 
ton was  walking  to  the  door,  and  then  to  the  bed  and  then  back  to  the  door,  so  he 
walked  and  turned  around  back  and  forth.  When  I  got  up  out  of  the  chair,  he  come 
and  didn't  get  more  than  half  way  sat  down  in  the  chair  until  the  gun  was  fired,  and 
I  said  to  Mr.  Allnutt  the  lamp  had  exploded,  and  he  said  no  it  was  somebody  had 
killed  Clayton.  And  I  said  let's  pick  him  np,  maybe  he  ain't  dead,  and  he  said  some, 
body  shot  him  through  the  window.  He  said  "That  is  just  as  I  expected."  He  said 
he  was  looking  for  something  like  that.  I  said  "  Is  that  so  ?  "  to  Mr.  Allnutt,  and  he 
said  "  of  course,  don't  you  hear  the  blood  running  there.  The  blood  is  running  just 
like  water  outof  a  jug,"  and  I  noticed  it  after  he  called  my  attention  to  it;  at  the 
time  I  didn't  know.  The  concussion  had  bio  wed  the  lamp  out  and  there  was  just  a 
little  fire  in  the  fire-place.  We  could  just  see  the  body  of  the  man  to  see  he  was 
lying  there.  We  just  walked  into  the  other  room  where  Mrs.  McCraven  was  and  she 
asked  what  was  the  matter,  and  we  said  somebody  had  shot  Clayton.  And  just 
about  that  time  there  was  three  persons  came  in,  she  said  they  were  her  boarders, 
and  we  got  a  lamp  and  walked  back,  and  we  found  he  had  fallen  right  back  with  his 
feet  hanging  over  his  chair ;  I  don't  think  he  ever  moved  at  all. 

Q.  His  feet  were  hanging  over  a  chair  ?— A.  The  chair  he  was  sitting  down  on. 
He  fell  right  over  and  the  back  of  his  head  struck  the  floor. 

Q.  His  body  fell  over  the  chair? — A.  Yes,  sir. 

Q.  His  feet  were  lying  up  over  the  chair? — A.  Yes,  sir;  there  was  just  enongh  fire 
for  us  to  see  his  legs  where  they  hung  np  over  the  chair. 

A.  You  went  back  into  the  room  ? — A.  Yes,  sir,  and  he  was  lying  there  just  as  we 
left  him. 

Q.  His  life  was  extinct  ? — A.  Yes,  sir ;  we  didn't  see  any  signs  of  life. 

Q.  What  time  elapsed  from  the  time  the  gun  was  fired  until  you  went  back  in  the 
room  ? — A.  Oh,  I  suppose  5  minutes.  I  was  afraid  to  go  back  there  right  quick.  I 
didn't  know  whether  they  was  gone  or  would  shoot  again,  but  I  hesitated  to  go  back, 
but  finally  we  went  back. 

Q.  Who  went  back  ? — A.  Well,  Mr.  Allnutt  I  know  he  was  in  front  and  I  know  I 
was  behind,  and  I  think  a  man  they  call  Mnndon  had  come  in.  They  had  a  lantern. 
It  was  not  over  three  minutes  that  they  come  after  he  was  shot. 

Q.  They  came  right  past  the  window  through  which  Clayton  was  shot  ? — A.  That 
is  the  way  I  think  they  come.  Of  course  I  was  listening  for  everything  made  any 
noise  and  I  could  hear  them  walking  right  round,  and  when  they  come  we  didn't 
know  hardly  whether  to  let  them  in  or  not,  but  Mrs.  Cravens  knew  their  voice. 


748  CLAYTON   VS.    BEECKINRIDGE. 

Q.  Did  you  hear  anybody  immediately  after  the  report  of  the  gun — did  you  hear 
anybody  going  away  from  the  outside  ?— A.  No,  sir ;  I  didn't  hear  a  thing. 

Q.  At  the  time  that  you  were  sitting  there  at  the  window  writing  at  the  table,  you 
didn't  hear  anyvhing? — A.  I  hadn't  noticed  any  noise. 

Q.  No  noise  from  the  outside  there  ?  How  long  after  you  left  that  seat  before 
Clayton  was  killed  ? — A.  I  don't  think  it  could  have  been  more  than  a  minute  or  two 
minutes;  that  is  my  recollection. 

Q.  Had  you  just  gotten  out  of  your  seat  ? — A.  I  just  walked  off  in  front  of  the  fire- 
place and  was  a  little  chilly,  and  I  just  started  to  the  fireplace  and  he  went  aud  sat 
down  in  the  chair,  aud  before  he  got  himself  seated,  he  was  just  about  in  a  stooping 
position,  a  sort  of  half-sitting  down  position,  talking  to  Allnutt.  He  was  talking 
to  Allnutt  all  the  while.  He  was  in  tliis  position  when  he  was  sitting  down,  stoop- 
ing, and  had  his  hands  in  his  pockets,  and  he  had  been  walking  the  floor  with  his 
fingers  in  his  pockets. 

Q.  Did  you  remain  there  the  balance  of  that  night  ? — A.  Yes,  sir. 

Q.  Do  you  recollect  what  kind  of  a  curtain  hung  over  the  window  f— A.  Yes,  sir;  it 
was  just  a  calico  curtain  ;  it  lacked  about  two  inches  I  suppose  of  covering  the  win- 
dow where  it  parted. 

Q.  Do  you  recollect  that  curtain,  what  its  condition  was  there  ? — A.  I  think  the 
curtain  had  a  hole  that  was  left  there  as  it  hung,  separated  but  not  far.  It  lacked  an 
inch  and  a  half  I  suppose  of  covering  the  window  at  the  bottom ;  it  spread  apart  a 
little. 

Q.  Did  the  shot  destroy  the  curtain  in  any  way  ? — A.  It  tore  a  hole  in  the  side  near 
the  middle  of  the  window.  I  don't  think  it  tore  it  to  the  edge.  You  could  put  your 
fist  through  the  hole. 

Q.  The  curtain  separated  of  its  own  volition  ? — A.  Yes,  sir. 

Q.  Where  did  you  remain  the  balance  of  the  night? — A.  Well,  I  stayed  up  with 
the  corpse  until  about  1  o'clock,  or  1  reckon  it  was  about  12  or  1  when  I  went  to  bed. 

Q.  Did  you  hear  anybody  around  there  during  the  balance  of  the  night  while  you 
were  staying  up  ? — A.  No,  sir. 

Q.  Something  has  been  said  about  a  blanket  having  been  put  up  at  the  window  1 — 
A.  I  think  Mr.  Allnutt  put  it  up  some  time  after;  he  said  he  didn't  like  the  looks  of 
that  window.  He  put  up  the  blanket  over  it ;  I  think  he  did  ;  I  won't  say.  It  may 
be  Mr.  Armstrong  put  it  up ;  I  ain't  positive.  Somebody  put  up  that  blanket  and  he 
suggested  to  somebody  to  help  to  put  it  up. 

Q.  Something  has  been  said  about  some  tracks  being  about  there  around  the  win- 
dow next  morning. — A.  There  was. 

Q.  Did  you  have  any  occasion  to  look  at  them  T — A.  Yes,  sir ;  I  got  up  and  looked 
at  them. 

Q.  Before  many  people  had  been  about  the  door  ?— A.  There  was  a  few  had  been 
about  the  door.     Those  who  stayed  about  there  all  night  probably  had  been  out. 

Q.  What  tracks  at  the  window  did  you  discover  ? — A.  I  looked ;  there  had  been  two 
persons  around  there,  walking,  and  there  was,  it  looked,  about  a  No.  8  shoe,  and  I 
didn't  notice  the  length  of  it. 

Q.  Now  did  you  make  any  observation  under  both  windows  f — A.  No,  sir,  I  didn't ; 
only  the  window  where  the  shot  was  fired. 

Q.  That  was  the  window  near  the  chimney? — A.  Yes,  sir. 

Q.  Did  you  make  any  attempt  to  trace  these  tracks? — A.  I  did,  just  to  the  garden 
gate.  I  was — I  saw  it,  walked  up  right  to  a  little  garden  gate  and  went  through  that 
garden  gate  and  I  didn't  follow  that  up  any  further  than  the  first  gate  in  the  garden ; 
but  some  parties  had  passed  out  where  there  was  some  palings  otf  the  fence,  and  I 
think  they  come  and  went  back  the  same  way,  from  the  looks  of  the  tracks. 

Q.  Was  there  any  path  which  led  from  the  garden  gate  ? — A.  I  don't  think  there 
was  any  track. 

Q.  No  track  ?— A.  There  was  tracks,  but  no  regular  path  where  the  people  went  in 
aud  out. 

Q.  Was  that  a  dark  night  ? — A.  I  think  it  was  starlight ;  there  was  no  moon,  it 
was  tolerably  dark,  I  think,  is  my  recollection. 

Q.  How  wide  was  that  gate?—!..  I  suppose  3  feet  to  three  and  a  half. 

Q.  Had  it  any  fastening? — A.  I  don't  remember  now  whether  there  was  any  shut 
to  the  gate  or  not ;  it  was  wide  open. 

Q.  In  passing  through  that  gate  going  out  towards  the  garden  what  point  would 
that  run  to,  the  road  ? — A.  No,  sir. 

Q.  That  is  not  the  point  that  runs  out  to  the  load  ? — A.  No,  sir ;  there  is  woods 
back  of  the  garden. 

Q.  I  understand  your  best  impression  is  these  tracks  came  through  that  gate  origi- 
nally ? — A.  From  the  signs  it  appeared  to  me  that  it  looked  like  the  same  tracks  had 
come  there. 

Q.  And  the  persons  who  came  through  were  familiar  with  the  opening  of  the 


CLAYTON    VS.    BRECKINRIDGE.  749 

fence? — A.  That's  the  way  T  thiuk  tbey  came  from  what  I  conld  see.    I  don't  know 
whether  they  was  familiar  with  it  or  not.     I  just  went  to  the  lirst  gate. 

Q.  How  long  did  you  remain  at  Plummerville  after  that  ? — A.  1  left  and  came  down 
when  the  corpse  come.    I  got  through  with  my  husiness  and  came  down. 

Cro88-ex : 

Q.  There  was  no  one  in  the  room  but  Allnutt  and  yourself? — A.  No,  sir. 

Q.  Did  Allnutt  stay  all  night? — A.  Yes, sir  ;  he  stayed  all  night. 

Q.  Who  else  was  there  during  the  night  ? — A.  There  was  nobody,  until  after  the 
shooting  several  came  in.  Mr.  Armstrong  came  in  there — was  staying  up  with  the 
corpse.     Several  I  didn't  know  came  in  when  they  heard  of  it, 

Q.  What  did  you  do  with  the  body  ? — A.  Well,  we  moved  it  back  out  of  the  blood, 
and  I  thiuk  they  put  a  quilt  under  him  and  one  under  his  head,  they  got  a  double 
qnilt  and  put  it  under  his  head,  and  laid  one  over  him  and  moved  him  out  of  the 
blood. 

Q.  Was  he  straightened  out  ? — A.  Yes,  sir. 

Q.  You  think  there  was  a  quilt  under  him  and  may  be  something  over  him  ? — A.  I 
think  there  was.     I  know  there  was  a  quilt  doubled  up  and  put  under  his  head. 

Q.  There  was  a  watch  kept  up  all  uight  ?— A.  Yes,  sir;  Mr.  Armstrong  staid  up 
aw  bile,  and  some  others  after  I  went  to  bed. 

Q.  Was  there  a  quilt  laid  under  him,  and  something  over  him,  or  just  something 
under  him  ? — A.  I  think  there  was  something  over  Sim;  I  don't  remember  particu- 
larly. 

Q.  There  was  several  came  in  there,  but  only  four  of  you  kept  watch  ? — A.  Yes,  sir. 

Q.  Who  kept  watch  with  you  ? — A.  Mr.  Armstrong  was  up  as  long  as  I  staid  there. 

Q.  Then  you  wenk  to  bed,  and  who  got  up,  Mr.  Allnut? — A.  Mr.  Allnut,  I  think, 
stayed ;  he  was  staying  up  after  I  went  to  bed  ;  I  think  he  stayed  up  all  night,  but  I 
don't  know. 

Q.  Where  vvere  you  next  morning? — A.  After  breakfast  I  went  down  to  finish  de- 
livering my  ware. 

Q.  Did  W.  T.  Hobbs  keep  watch  that  night  ? — A.  1  don't  know.  I  know  Mr.  Hobbs 
very  well,  but  there  was  so  many  and  I  was  kind  of  excited. 

Q.  Did  everybody  seem  to  be  very  attentive  in  doing  what  they  could  that  night  ? — 
A.  Yes,  sir ;  Mr.  Armstrong  said  he  would  go  right  off  and  send  off  some  dispatches 
as  soon  as  he  could,  and  we  stayed  there  and  he  went  off  to  send  off  some  dispatches 
and  was  moving  around  pretty  X)ert. 

Q.  Did  everybody  seem  to  be  attentive? — A.  Why,  they  appeared  that  way  to  ine. 

Q.  Did  you  see  any  difference  between  the  attention  given  there  and  what  is  ordi- 
narily given  when  anybody  is  dead  and  the  people  gather  about  ?~A.  They  seemed 
to  be  all  right  smart  excited  about  it. 

Q.  Who  took  charge  of  his  effects,  if  you  remember  ? — A.  Next  morning  ? 

Q.  Well,  any  time  there;  who  took  charge  of  his  pocket-book,  or  anything  of  the 
kind  ;  did  anybody  look  after  that? — A.  Well,  it  seems  to  me  like  the  marshal  did  ; 
I  forget  his  name.  I  think  somebody  spoke  about  getting  the  marshal.  Perhaps  Mr. 
Carroll  Armstrong  was  there  present. 

Q.  Who  seemed  to  superintending  it  or  to  be  in  charge? — A.  Mr.  Armstrong. 

Q.  Do  you  know  whether  Mr.  Allnut  took  charge  of  his  satchel,  or  anything,  or 
what  Mr.  Allnut  did  about  there  ? — A.  I  think  probably  he  did  take  charge ;  yes, 
sir,  I  think  he  did. 

Q.  Did  he  seem  to  be  interesting  himself  ? — A.  He  seemed  like  he  was  interested 
right  smartly,  so  far  as  going  out  of  doors  and  running  around  is  concerned  ;  I  think 
Mr.  Armstrong  did  most  of  that ;  I  didn't  think  Mr.  Allnut  went  out  that  night. 

Q.  Was  there  any  pursuit  organized  that  night  by  any  one  that  you  know  of  ?— A. 
By  Mr.  Allnut  ? 

Q.  By  anybody  ?— A.  No,  sir;  J  don't  know  that  there  was. 

Q.  What  (lid  Mr.  Allnut  do  in  the  way  of  finding  out  who  did  the  shooting  ?  Did 
he  do  anything? — A.  No,  sir;  he  never  went  out  of  the  house  up  to  the  time  I  went 
to  bed. 

Q.  Did  he  ask  anybody  else  to  go  out  around  ? — A.  Not  that  I  heard  of. 

Q.  Do  you  know  that  he  took  any  steps  or  have  any  of  the  oflQcers  to  do  any- 
thing ?— A.  I  don't  know  but  he  did. 

Q.  Yon  think  he  didn't  go  out  of  the  house? — A.  I  am  satisfied  he  didn't  go  out  as 
long  as  I  was  up  ;  I  heard  him  say  he  wouldn't  go  out. 

Q.  You  think  he  was  a  little  alarmed  ? — A.  Yes,  sir ;  he  was  a  right  smartly  scared, 
and  so  waB  L 

Q.  You  don't  know  of  his  asking  any  one  else  to  go? — A.  No,  sir. 

Q.  Yon  know  whether  he  requested  anybody  to  send*  for  any  officer? — A.  I  don't 
remember  of  hearing  him  request  anybody  at  all;  I  don't  remember  of  hearing  him 
say  anything  about  it. 

Mr.  Bergen.  How  long  had  you  been  in  Plummerville  t 


750  CLAYTON   VS.    BRECKINRIDGE. 

A.  I  just  came  that  night  about  dark,  I  reckon. 

Q.  Who  had  you  seen  after  yon  arrived  in  Plummerville  ? — A.  I  hadn't  seen  any- 
body, except  I  went  to  Mr.  Sims  at  the  hotel,  and  he  told  me  he  didn't  have  any  bed 
for  lue,  and  told  me  I  could  get  a  bed  over  at  Mrs.  McCravens's. 

Q.  Who  did  you  see  before  you  left  Plummerville,  in  a  business  way  ? — A.  I  saw  all 
the  merchants ;  I  had  a  bill  of  crockery  there  to  deliver  to  most  all  the  merchants. 

Q.  What  was  the  obje<;t  of  your  visit  to  Plummerville  ? — A.  It  was  to  deliver  stone- 
ware; 1  was  in  the  crockery  business. 

Q.  Did  you  represent  a  mercantile  business?— A.  No,  sir  ;  I  represented  stoneware 
and  crockery  ;  1  represented  that  business  down  there. 

Mr.  Lacey.  How  high  above  the  wiudow-sill  did  the  shot  come  in  t 

A.  Well,  sir,  I  think  about  a  foot  or  a  little  over. 

Q.  Did  it  go  in  through  the  second  pane  of  glass? — A.  I  think  the  second  pane. 

Q.  Very  near  the  center  of  the  window? — A.  Yes,  sir;  it  came  in  between  where 
the  curtains  were  apart. 

Q.  Did  some  of  the  shot  go  through  both  curtains? — A.  No,  sir;  it  seemed  to  me 
the  shot  was  slanted  and  just  put  a  hole  through  one  curtain. 

Q.  Suppose  the  window  was  where  I  am,  it  was  just  about  this  way  from  the  win- 
dow ? — A.  The  window  was  right  here,  and  he  shot  him  as  he  came  along  and  sat 
down. 

Q.  How  was  his  face ;  was  it  turned  towards  the  window  as  yours  is  towards  me  ? — 
A.  No  sir;  but  about  this  way;  he  was  looking  towards  Mr.  AUnut. 

Q.  So  that  the  murderer  had  apparently  fired  the  shot  into  his  ear  ? — A.  Yes,  sir ;  he 
shot  him  as  he  was  sitting  down. 

Q.  In  the  act  of  sitting  down? — A.  Yes,  sir. 

Q.  You  heard  no  confusion  nor  anything  of  the  kind  ? — A.  No,  sir. 

Q.  Did  you  notice  the  tracks  next  morning  ? — A.  Yes,  sir ;  I  noticed  the  tracks. 

Q.  Did  you  see  where  the  man  had  fallen  down  ? — A.  No,  sir. 

Q.  Did  you  hear  since  any  one  saw  where  a  man  had  fallen  down  ? — A.  No, sir;  I 
heard  where  they  had  went  against  the  fence  and  went  out  at  the  gate. 

Q.  Did  you  notice  tracks  at  the  window  looked  as  though  a  man  had  been  moviag 
around  ? — A.  Yes,  sir ;  it  appeared  so. 

Q.  Was  it  a  single  track  ? — A.  It  appeared  to  me  he  had  been  tramping  around  a 
little ;  several  tracks  together. 

Q.  As  though  these  men  had  to  stand  there  and  watch  him  for  awhile? — A.  It 
looked  like  they  had  been  moving  around  there  a  little. 

Mr.  Cooper.  The  tracks  of  two  different  men  ? 

A.  It  looked  to  me  like  it  was. 

Q.  Different  size  tracks  or  different  foot-gear? — A.  Yes,  sir;  I  think  it  appeared 
they  both  had  on  overshoes,  if  there  was  two  of  them.  Of  course  one  man  conld  have 
made  those  tracks. 

Q.  What  was  your  opinion  at  the  time  ? — A.  My  opinion  was  there  was  two. 

Mr.  Maish.  Did  you  notice  whether  one  of  them  had  new  rubbers  on  ? 

A.  I  don't  know  whether  they  was  new  rubbers  or  not. 

Q.  You  could  tell  it  from  the  marks  ? — A.  I  could  tell  they  was  rubber  overshoes, 
but  I  don't  know  whether  they  was  new  or  not. 

Mr.  McCain.  Did  you  inquire  to  see  if  you  could  get  any  clew  as  to  who  had  per- 
petrated that  act  the  next  morning  ? 

A.  No,  sir;  I  did  not. 

Q.  Yon  didn't  hear  of  anything  you  would  regard  feasible  ? — A.  Not  a  word.  Every- 
body seemed  to  be  astonished,  and  everybody  of  course  was  excited,  and  didn't  know 
hardly  what  to  do.  That  was  the  fact  about  it.  It  appeared  to  me  that  way — that 
they  didn't  know  what  to  do  or  what  steps  to  take  the  next  morning. 

Q.  Didn't  Maj.  Breckinridge  write  you  once  to  get  the  particulars? — A.  Well,  yes. 
I  didn't  get  the  letter  direct  from  Breckinridge ;  Armstrong  wrote  me. 

Q.  Did  you  write  to  Breckinridge? — A.  Yes,  sir. 

Q.  You  say  yon  wrote  to  him  ? — A.  No;  I  didn't  write  to  Breckinridge;  I  just  an- 
swered Carroll  Armstrong's  letter.  It  was  a  request  of  Breckinridge  to  know  the 
particulars. 

Q.  Do  you  know  that  Mr.  Armstrong  received  the  letter? — A.  Yes,  sir;  I  think  he 
did.  I  think  he  told  me  so.  I  know  it  was  a  request  of  Mr.  Breckinridge  ;  he  sent 
the  letter  to  Morrilton. 

Q.  Did  you  see  the  people  there  next  morning? — A.  Yes,  sir. 

Q.  How*  did  the  people  talk  about  it  next  morning,  or  did  you  hear  anybody  talk 
about  it  ? — A.  No  ;  I  did  hear  people  talk  about  it  some.  They  seemed  to  regret  it 
very  much  that  it  had  happened. 

Q.  Did  they  seem  to  feel  considerable  interest  in  the  occurrence  ? — A.  Yes,  sir ;  they 
talked  that  way. 

Q.  Did  you  get  fr  nu  them  any  idea  of  how  that  had  occurred  or  anything? — A. 
Well,  no,  sir;  I  didn't.    They  seemed  to  be  astonished. 


CLAYTON   VS.    BEECKINEIDGE.  751 

It  will  be  seen  that  all  the  evidence  so  far  is  circumstantial.  The  peo- 
ple were  almost  stupefied  with  astonishment,  and  when  Mr.  W.  H.  H. 
Clayton  arrived  next  morning  they  were  nearly  all  at  the  building 
where  the  coroner's  inquest  was  hold  or  was  being  held.  Even  Mr.  Al- 
nut  was  there,  and  he  was  held  there  by  his  deep  interest  in  the  tragedy 
and  proceedings  until  after  the  body  was  taken  away. 

To  still  further  show  the  state  of  public  sentiment  there  at  the  time,  a 
very  important  feature  in  guiding  suspicion,  we  call  attention  to  the 
statements  and  complaints  upon  this  score  of  Mr.  W.  H..  H.  Clayton 
and  to  such  as  have  been  circulated  generally. 

It  has  been  said  that  Col.  Clayton  was  forced  to  go  to  Mrs.  McCra- 
vens's  house,  on  the  edge  of  the  little  town,  being  suspiciously  denied 
lodging  at  the  stopping  place  near  the  railroad.  Mr.  Womack  had  to 
do  the  same,  for  the  assigned  reason  that  the  other  place  was  full  or  the 
man's  wife  was  sick.  Mrs.  McCravens  was  a  sister  of  a  brave  officer  in 
the  Union  army,  and  could  hardly  be  looked  upon  with  8US{)icion.  No 
susi)icion  is  attached  by  any  one,  except  in  this  alleged  connection,  to 
the  keeper  of  the  other  boarding-house.  Mr.  Clayton  says  the  people 
did  not  come  about  him.  As  Alnut  did  not  com«,  the  reasons  that  kept 
him  where  the  coroner's  jury  was  must  be  accepted  as  sufficient  to  keep 
the  others.  Besides,  neither  he  nor  they  knew  of  his  coming.  All  were 
absorbed  in  the  proceedings  at  and  about  the  coroner's  i^lace  of  inquiry. 

He  says  the  people  of  the  town  put  Mrs.  McCravens  up  to  charging 
him  a  big  bill  tor  damages.  She  and  her  daughter  both  deny  it.  He 
holds  Mr.  Armstrong  responsible  for  what  he  considers  the  neglect  of 
his  brother's  body.  Mr.  Alnut  shows  that  the  body  was  decently  and 
tenderly  cared  lor,  and,  while  covered  and  arranged,  was  left  on  the 
floor  at  his  jsuggestion,  Mr.  Armstrong  having  desired  to  place  it  on  the 
bed.  All  the  arrangements  met  the  approval  of  Mr.  Alnut  and  the  at- 
tending physician,  and  Mr.  Alnut  took  charge  of  the  effects.  He  com- 
plains that  no  ladies  met  him.  Mrs.  McCravens  and  her  daughter,  Mrs. 
Hall,  were  in  the  house,  and  Mrs.  Hall  explains  that  she  was  so  fright- 
ened that  she  didn't  know  what  to  do,  and  she  thought  the  gentlemen 
would  attend  to  the  body.  It  is  fair  to  conclude  that  the  other  women 
of  the  place  were  shocked  and  startled  and  thought  and  felt  pretty 
much  as  Mrs.  Hall  did. 

Plummerville  is  a  little  trading  place  on  the  Little  Rock  and  Fort 
Smith  railroad,  with  but  few  inhabitants,  and  the  township,  including 
the  town,  if  it  may  be  called  a  town,  has  a  population  of  four  or  five 
negroes  to  one  white  person. 

The  facts  utterly  discredit  the  idea  that  the  community  was  "  terror- 
ized "  or  anything  of  that  sort,  as  is  so  frequently  expressed.  As  Mr. 
Alnut  says,  the  people  were  "astonished,"  and  they  evidently  "  didn't 
know"  anything.  They  evidently  acted  as  such  a  community  would 
naturally  act  in  perfect  innocence,  and  yet  in  the  immediate  presence 
of  such  a  tragedy.  It  shows  that  tlie  community  was  both  ignorant  and 
innocent  of  the  crime,  and  that  hence  we  must  look  to  individuals  alone 
for  guilt,  or,  if  we  still  suspect  a  community,  then  to  some  other  com- 
munity than  the  one  in  which  the  crime  was  committed.  It  remains  to 
be  seen  whether  the  deed  points  to  the  collective  sympathy  and  guilt 
of  any  other  community,  or  simply  to  the  guilt  of  individuals.  This 
character  may  be  clearly  determined  while  the  actual  perpetrators  may 
still  remain  wholly  undetected. 

We  forbear  any  criticism  upon  the  statements  of  W.  H.  H.  Clayton. 
They  evidently  were  born  almostsolely  of  his  feelings,  and  hence  are  un- 
reliable as  evidence.    John  M.  Clayton  was  his  twin  brother,  and  the 


752  CLAYTON    VS.    BRECKINRIDGE. 

grief  and  shock  of  his  death  can  readily  account  for  his  conceptions. 
Tic  was  at  one  time  very  bitter  in  his  views  about  the  Hooper  theory  of 
the  unirder,  thinking  the  governor  had  been  misled,  and  that  he  was  not 
l)ropeiiy  justified  in  giving  it  the  attention  he  did.  This  he  has  already 
corrected  when  the  governor  said  to  him  (page  555  testimony) : 

After  readiiifj  the  8ater  letters  and  hearing  the  testimony,  he  said  in  his  testimony 
that  he  believed  that  I  was  misled  in  some  way  to  go  off  after  a  clew  which  wonld 
probably  load  away  fr  m  rather  than  to  the  murderers.  Now,  after  reading  the  let- 
ters, and  having  a  full  statement  of  the  facts  connected  with  it,  I  would  be  glad  if  he 
wonld  state  now  whether  he  now  thinks  that  I  had  justifiable  grounds  for  pursuing 
that  clew  or  not. 

W.  H.  H.  Clayton.  You  had,  sir. 

We  mention  this,  not  as  additional  evidence  of  the  unreliability  of 
his  statements  and  opinions  upon  this  subject,  for  it  shows  that  he  is 
beginning  to  see  the  unreasonableness  of  some  of  his  expressions,  but 
we  do  it  as  an  exhibition  of  his  sincerity  and  to  prevent  our  judgment 
of  his  statements  from  being  construed  as  any  reflection  upon  his 
veracity.  His  condition  and  the  circumstances  account  for  his  errors, 
^vhich  call  for  sympathy  rather  than  strictures.  We  doubt  not  the 
errors  will  soon  appear  as  ai)parent  to  him  as  they  must  be  to  others. 
Censure  here  is  only  appropriate  for  those  who  knowing  better  continue 
to  use  tht  se  misstatements  as  facts. 

But  to  fully  present  the  prelimiuarj'^  basis  of  all  right  reasoning  about 
this  matter,  we  insert  the  testimony  of  Mrs.  McCravens,  and  her 
daughter,  Mrs.  Hall,  at  whose  house  Colonel  Claytou  was  killed. 

Mrs.  Mary  Ann  McCravens,  called,  sworn,  examined,  and  testified: 

Q.  Where  do  you  reside  now  ? — A.  Plummerville. 

Q.  Where  did  you  reside  on  the  29th  day  of  January,  1889  T — A.  Plnmmer. 

Q.  How  long  have  you  resided  there  prior  to  that  time  ? — A.  10  years. 

Q.  In  what  business  were  you  engaged  ? — A.  'Keeping  boarders. 

Q.  State  if  on  that  xJ9th  day  of  January  John  M.  Clayton  was  boarding  at  your 
Louse  f — A.  Yes,  sir. 

Q.  It  was  iu  your  house  he  was  killed  t — A.  Yes,  sir ;  me  and  my  daughter  live 
together. 

Q.  State  what  time  in  the  evening  the  killing  took  place;  if  you  know  ? — A.  About 
9  o'clock  ;  it  lacked  5  minutes  of  9  by  our  time-piece. 

Q.  Do  you  know  whether  your  time-piece  was  approximately  correct? — A.  I  don't 
know.     I  can't  say. 

Q.  How  was  it  as  compared  with  the  town  time? — A.  Iidon't  know  whether  they 
had  a  time-piece  in  town,  but  I  saw  it  lacked  5  minutes  of  9  by  our  clock  there. 

Q.  At  what  time  do  you  usually  have  your  meals? — A.  Well,  about  6  o'clock. 

Q.  About  6  o'clock  in  the  morniagf — A.  About  6  o'clock  in  the  evening;  I  am 
siieaking  about  supper. 

Q.  How  about  noon  time  ? — A.  At  12  o'clock. 

Q.  Well,  now,  when  your  boarders  come  in  there,  did  they  come  about  when  your 
clock  was  12  and  6? — A.  Yes,  sir;  generally. 

Q.  It  seemed  to  be  your  clock  was  then  aboat  like  it  was  in  town  ? — A.  Yes,  sir, 
it  is. 

Q.  You  say  yon  think  it  was  about  5  minntes  of  nine  ? — A.  Before  9. 

Q.  How  many  beds  was  there  in  the  room  in  which  Mr.  Clayton  was  killed  ?— A. 
Two. 

Q.  What  number  of  pieces  of  furniture  were  in  the  room  T — A.  Bureau,  table,  and 
chairs. 

Q.  How  many  chairs,  do  you  recollect? — A.  I  don't  remember. 

Q.  Is  there  a  firejdace  in  that  room  ? — A.  Yes,  sir. 

Q.  At  which  end  of  the  house  is  it  ? — A.  The  north  end  of  the  house. 

Q.  How  wide  is  that  fireplace  ?  What  size  stick  of  wood  will  it  take  in  ? — A.  About 
that  long,  2 or  3  feet;  I  reckon  about  two  and  a  half. 

Q.  How  many  windows  were  in  the  room  ? — A.  Two. 

Q.  Where  were  they? — A.  One  in  the  north  end  of  the  house  and  one  in  the  east 
end. 

Q.  In  the  same  room  ? — A.  Yes. 

Q.  What  kind  of  a  table  was  there  ? — A.  Just  a  common,  plain  table  to  set  a  candle 
on. 


CLAYTON   VS.    BRECKINRIDGE.  753 

Q.  RouDtl  or  square  ? — A.  It  waa  kiad  of  square  at  the  corners. 

Q.  About  how  large  was  it  across  the  top  ? — A.  I  reckon  about  that  wide  across. 
(Indicating.] 

Q.  You  mean  in  length,  or  that  much  square  ?—  A.  Square. 

Q.  Was  that  a  square  table  ? — A.  Yes,  sir. 

Q.  How  many  days  was  Mr.  Clayton  in  your  house  down  there  ? — A.  I  declare  I 
don't  remember  bow  many  days  he  did  stay  there. 

Q.  You  don't  recollect  ? — A.  No,  sir. 

Q.  Now  you  ought  to  know. — A.  I  tell  you  I  have  been  so  confused,  but  I  want  to 
tell  the  truth  ;  but  I  disremeniber  how  many  days  he  staid  there. 

Q.  Didn't  he  go  there  on  Thursday  evening  before  that  ? — A.  I  ain't  going  to  say 
positively,  for  I  don't  recollect.  I  want  to  tell  the  truth  about  everything.  The  first 
was  a  gentleman  with  him,  and  they  took  dinner  and  in  the  evening  they  came  over 
to  our  house. 

Q.  On  Thursday  ? — A.  I  believe  it  was. 

Q.  Did  Mr.  Clayton  and  the  gentleman  who  was  with  him — do  you  recollect  whether 
they  remained  at  your  house  during  that  time? — A.  They  came  and  spoke  for  board- 
ing. 

Q.  Who  was  the  man  that  first  spoke  for  boarding  ? — A.  He  spoke  for  boarding 
himself;  he  never  called  Mr.  Clayton's  name  ;  he  just  spoke  for  himself  and  another 
gentleman,  and  I  took  him  in,  and  he  said  they  would  V)e  there  for  some  8  or  10  days. 

Q.  How  many  parties  were  in  the  room  when  he  came  to  see  you  about  getting 
board  in  the  house  ? — A.  Wel^  I  will  tell  you  the  room  they  occupied  together  had 
but  one  bed  in  it,  and  they  slept  together.  It  was  a  hall ;  there  was  just  one  bed  in 
it  they  occupied  to  sleep  in. 

Q.  Is  that  the  room  in  which  Mr.  Clayton  was  killed? — A.  No,  sir;  he  was  killed 
in  the  room  where  the  fire-place  was. 

Q.  Did  they  sleep  in  the  room  where  the  fire-place  was? — A.  No,  sir  ;  he  slept  in 
the  place  where  the  hall  was  I  speak  of. 

Q.  Was  there  any  window  in  that  room  ? — A.  No,  sir. 

Q.  Now  as  to  the  furniture  in  the  other  room  where  the  fire-place  was,  how  many 
beds  were  there  when  this  first  gentleman  went  over  there  ? — A.  Just  the  two  beds. 

Q.  Who  did  you  say  it  was  spoke  for  boarding  there  ;  what  was  his  name  ?-rA.  Mr. 
McCord. 

Q.  Did  you  change  the  position  of  the  beds  in  that  room  at  any  time  after  Mr.  Mc- 
Cord engaged  rooms  of  you  over  there  ? — A.  No,  sir  ;  not  any. 

Q.  They  remained  precisely  the  same  ? — A.  Yes,  sir  ;  the  same. 

Q.  Did  they  remain  in  the  same  place? — A.  Yes,  sir. 

Q.  The  table  was  in  the  same  place  ? — A.  Yes,  sir. 

Q.  There  had  been  no  movement  or  moving  of  the  furniture  from  the  time  he  went 
there  ? — A.  No,  sir ;  not  any. 

Q.  Can  you  tell  me  what  happened  immediately  or  what  you  did  upon  hearing  the 
shot  ?— A.  Well,  I  can't  tell  you  nothing,  only  we  was  all  'scared  to  death  when  we 
heard  the  shot.  I  can't  tell  you  much  about  it.  Me  and  my  daughter  was  just  there 
alone  and  Mr.  Wamuck  and  Mr.  Allnntt  was  in  the  room  with  Mr.  Clayton,  aud  Mr. 
Allnutt  came  running  in  and  we  said  the  lamp  was  exploded,  aud  he  said  no,  some- 
body had  shot  Mr.  Clayton,  but  none  of  us  ever  went  into  the  room;  I  went  to  see  if 
the  lamp  had  exploded  and  set  the  building  on  fire;  we  never  went  in  the  room. 

Q,  How  long  was  It  after  the  shot  was  fired  before  anybody  went  in  that  room  ? — 
A.  Just  a  short  time. 

Q.  Who  went  into  it  first;  do  you  recollect  about  that  ? — A.  I  don't  recollect. 

Q.  Do  you  recollect  who  took  the  light  in  there? — A.  I  don't  know. 

Q.  Who  were  the  first  persons  that  came  to  your  house  immediately  after  the  shoot- 
ing?— A.  Well,  I  can't  tell  you;  there  was  three  gentlemen,  but  they  didn't  go  into 
the  room  at  all ;  they  came  in  the  gangway,  in  the  door. 

Q.  Who  were  the  first  persons  you  saw  there  ? — A.  I  don't  know. 

Q.  It  has  been  stated  that  some  members  of  your  family  were  the  first  persons 
there — who  boarded  there,  came  shortly  after? — A.  They  came  in  a  few  minutes. 
Mr.  Mundon  and  Mr.  Elihu  Durham  and  my  grandson. 

Q.  How  long  was  that  after  the  shot  was  fired  ? — A.  Just  a  few  minutes ;  I  couldn't 
tell  exactly.  They  said  they  was  about  half  way  from  our  house  and  town  where 
Mundon  kept  store  when  they  heard  the  shot. 

Q.  Thev  came  on  up  there? — A.  Yes,  sir;  but  they  said  they  never  thought  about 
it.  '        * 

Q.  How  did  they  come  into  your  house  ? — A.  They  came  in  another  way ;  they  came 
in  at  the  south  end.    They  didn't  go  in  the  room  where  Mr.  Clayton  was. 

Q.  What  become  of  these  people  after  they  had  come  in  the  house ;  where  did  they 
go  to? — A.  They  went  to  town  to  report  the  news  of  what  had  occurred. 

Q.  You  knew  then  that  Clayton  had  been  killed  before  anybody  entered  tlio 
room? — A.  Oh,  yes;  them  gentlemen  said  so,  Mr.  Wamuck  aud  Mr.  Allnntt. 

Q,  Had  either  of  them  at  that  time  been  in  there  f—A.  Tbey  left  there  as  quiolt  as 

H.  Mis.  137 48 


754  CLAYTON   VS.    BRECKINRIDGE. 

they  conld,  but  if  they  went  back  afterwards  before  Mr.  Mnndon  and  them  gentle- 
men come  I  don't  know  it ;  I  was  so  frightened  myself. 

Q.  You  recollect  who  came  up  there  that  night  after  that,  after  those  people  that 
belonged  to  your  family  ? — A.  I  don't  think  anybody  else  belonged  to  the  family. 

Q.  I  mean  after  those  people  that  stayed  in  your  family  ? — A.  I  don't  know ;  we 
never  left  our  room. 

Q.  So  you  don't  really  know  who  came  there  ? — A.  Oh,  no,  sir ;  there  were  a  great 
many  people  passing  in  and  out. 

Q  Was  you  in  and  out  of  the  room  before  that  ? — A.  I  had  been  in  and  out  of  the 
room  about  20  minutes  before  that. 

Q.  You  had  been  talking  in  there? — A.  Yes;  I  went  into  the  room  to  ask  Mr.  Clay- 
ton if  Mr.  Allnut  could  sleep  with  him.  Mr.  Allnutt  had  never  stayed  there  with  us 
until  that  night.  Mr.  Clayton  said  yes  he  could  sleep  with  him,  but  Mr.  Allnutt 
made  so  much  fus.s  in  his  sleep  Mr.  Clayton  couldn't  sleep,  and  then  I  fixed  a  bed  off 
in  aside  room  for  Mr.  Allnutt,  and  then  I  went  off  around  into  the  gallery  and  told 
my  daughter  we  had  to  fix  a  bed  up  for  Mr.  Allnu*^^t  and  I  went  back  to  tell  Mr.  All- 
nutt he  could  have  the  door  open  from  Mr.  Mundon's  room  to  go  into  the  room  ;  I 
stayed  there  a  little  bit  and  talked  and  I  had  been  out  of  there  perhaps  20  minutes 
when  I  heard  the  gun. 

Q.  You  speak  about  going  into  the  gallery. — A.  I  went  out  into  the  gallery  to  her 
room. 

Q.  Did  you  see  or  hear  anybody  around  there  that  night  ? — A.  No,  sir ;  not  at  alL 

Q.  Where  was  the  gallery  t 

Mr.  Lacey.  The  gallery  is  the  same  as  the  porch. 

A.  Yes,  sir ;  it  is  a  porch,  and  there  was  a  side  room  on  the  north  end  of  it. 

Q.  The  gallery  is  on  the  south  side  of  the  housi^f — A.  No ;  it  is  on  the  west. 

Q.  While  you  had  been  out  in  the  gallery  could  you  have  seen  through  the  window 
into  the  room  where  Mr.  Clayton  was  shot  ? — A.  No,  sir. 

Q.  It  there  had  been  anybody  out  there  they  could  not  have  seen  in  ? — A.  No,  sir. 

Q.  Had  you  any  occasion  to  go  to  the  door  or  to  pass  where  you  could  have  seen 
any  person  if  they  had  been  at  that  window  that  night! — A.  No,  sir. 

Q.  Did  you  see  anybody  going  away  or  running  away  from  there  ? — A.  No,  sir. 

Q.  Did  you  hear  anybody  running  away  from  there  that  night  ? — A.  No,  sir. 

Q.  Something  has  been  said  of  some  palings  being  broken  off  the  garden  fence. — 
A.  Yes,  sir ;  there  were  a  couple  of  places.  ' 

Q.  Were  those  places  broken  in  the  fence  that  night,  or  were  they  old  openings  in 
the  fence  that  existed  there  before? — A.  No,  sir;  if  it  had  been  done  before  it  was 
by  some  person  unbeknowns  to  us. 

Q.  it.  hadn't  been  done  in  the  day  time  the  day  before  he  was  killed? — A.  No;  Inever 
noticed  the  side  of  the  house,  for  our  cooking  room  and  dining-room  are  around  on 
the  west  side  of  the  house,  and  we  never  went  around ;  sometimes  it  would  be  3  or  4 
days  we  wouldn't  go  around  there. 

Q.  In  tending  to  the  ordinary  cares  of  the  house  would  you  be  apt  to  be  around 
there  to  see  them,  or  in  that  direction  t — A.  No,  sir ;  we  hadn't  been  for  a  great  while. 

Q.  You  don't  know  when  those  palings  were  taken  off? — A.  No,  sir ;  I  never  knew 
they  was  off  until  the  next  morning  after  he  was  killed. 

Q.  What  time  in  the  morning  did  you  discover  them? — A.  The  gentleman  who  was 
tbere  found  them  before  I  did. 

Q.  Did  you  go  out  there  ? — A.  No,  I  didn't  go  out. 

Q.  Do  you  know  whether  the  palings  were  lying  there  or  had  been  broken  off  that 
gate- way  ? — A.     I  couldn't  say  ;  I  don't  know. 

Q.  What  condition  was  that  ground  out  there  as  to  decayed  vegetation  ? — A.  There 
wasn't  any  thing  there. 

Q.  Was  there  no  weeds  standing  ? — A.  Not  to  amount  to  anything. 

Q.  What  had  been  kept  in  that  garden — any  cattle  of  any  sort? — A.  No,  sir. 

Q.  How  came  it  to  be  eaten  oft?— A.  The  calves  had  been  in  there;  they  got  in  at 
night;  and  we  had  it  plowed  up,  and  that  killed  the  vegetation  off;  and  we  sowed 
mustard  and  turnips  in  there.     There  was  no  weeds 

Q.  Had  they  come  up? — A.  Yes,  sir;  it  came  up — the  mustard;  the  weeds  and  every 
thing  was  killed  out  nearly ;  there  was  no  weeds  in  there. 

Q.  Did  you  ever  have  any  occasion  to  examine  tracks  that  have  been  spoken  of 
here — to  look  at  them  ? — A.  I  looked  at  the  tracks  under  the  window. 

Q.  Something  has  been  said  about  the  tracks  in  the  vicinity  of  the  tree? — A.  That 
is  right  at  the  window. 

Q.  How  far? — A.  As  far  as  from  here  to  this  gentleman. 

Q.  4  or  5  or  6  ftet  ? — A.  Yes,  sir ;  but  it  wasn't  the  window  he  was  shot  at ;  it  was 
the  north  window,  right  at  the  chimney. 

Q.  You  know  whether  those  are  the  same  tracks  that  had  been  there  at  the  win- 
dow, were  afterwards  discovered  at  that  one  ? — A.  I  don't  know  whether  it  was  the 
same  tracks  or  not;  people  had  been  around  the  house  so  much  before  I  went  out 
doors. 


CLAYTON    VS.    BRECKINRIDGE.  755 

Q.  This  tree  or  rose  bush  was  at  what  window  ? — A.  The  north  window. 

Q.  There  was  tracks  where  the  chimney  was  ? — A.  Yes,  sir. 

Q.  You  don't  know  whether  they  was  the  same  tracks  on  the  other  side  or  not  ? — A. 
No,  sir ;  for  I  never  went  to  look. 

Q.  Well,  I  don't  know  as  I  have  anything  else  to  ask.— A.  Well,  I  don't  know,  hut 
I  want  to  tell  everything  as  coixect  as  I  can. 

Mr.  McCain.  There  was  no  occasion  or  any  hostility  on  your  part  or  in  your 
family  ? 

A.  What's  that  f 

Q.  You  were  all  friendly  to  Mr.  Clayton  ? — A.  Why,  now 

Q.  You  had  nothing  against  him  ?— A.  There  was  nobody  with  me  hut  my  daugh- 
ter there  of  the  family ;  we  had  nothing  against  him. 

Q.  Your  family  were  Union  people  during  the  war  ? — A.  My  husband  was  a  Demo- 
crat. 

Q.  Some  of  your  folks  were  in  the  Union  Army  ?— A.  Yes,  sir ;  my  brother.  We  all 
lived  in  the  North.     I  havn't  got  no  relations  in  this  country  to  amount  to  anything. 

Mrs.  Elizabeth  Hall,  called,  sworn,  examined,  and  testified. 

Direct  ex. : 

Q.  Where  do  you  reside  ? — A.  At  Plummerville. 

Q.  Where  did  you  reside  on  the  29th  day  of  January,  1889  ? — A.  At  Plummerville. 

Q.  How  long  did  you  reside  there  before  that  ? — A.  Nearly  10  years. 

Q.  In  what  business  were  you  engaged  there  in  January,  1889? — A.  Keeping 
boarders ;  a  boarding-house. 

Q.  State  whether  or  not  John  M.  Clayton  was  a  boarder  in  your  family  in  the 
month  of  January,  1889? — A.  Yes,  sir;  he  was. 

Q.  Do  you  recollect  what  time  in  the  month  he  came  there? — A.  No,  sir;  I  don't. 

Q.  Do  you  recollect  the  day  of  the  week  ? — A.  As  well  as  I  recollect  it  was  on 
Thursday. 

Q.  State  who  came  first,  himself  or  who  else  to  see  about  it  ? — A.  A  gentleman 
came  with  him,  McCord,  I  think  was  his  name. 

Q.  Well,  what  length  of  time  did  he  engage  board  for  ? — A.  I  don't  recollect,  ex- 
actly. 

Q.  In  which  room  of  the  house  did  Mr.  Clayton  sleep? — A.  He  slept  in  the  middle 
room. 

Q.  In  the  middle  one  ? — A.  Yes,  sir. 

Q.  Was  there  anybody  else  in  the  room  ? — A.  No,  sir. 

Q.  Was  there  a  fire-place  in  it  ? — A.  No,  sir. 

Q.  What  opening,  if  any,  waa  there  out  of  that  room  into  what  we  call  the  north 
room  ? — A.  A  door. 

Q.  How  many  pieces  of  furniture  were  on  that  north  room  where  the  fire-place  is  f — 
A.  At  that  time? 

Q.  Yes,  ma'am. — A.  There  was  two  bedsteads,  a  bureau,  and  a  stand  table. 

Q.  Was  there  a  wash-stand  in  the  room,  or  did  they  go  outdoors? — A.  They  went 
out  on  the  porch  to  wash. 

Q.  Who  made  the  beds  in  that  house,  principally  ?— A.  My  daughter. 

Q.  Did  you  ever  assist  in  that  f — A.  No,  sir. 

Q.  Were  yon  familiar  with  the  condition  of  the  furniture  in  these  rooms? — A.  Yes, 
sir. 

Q.  How  fr*iquently  did  you  visit  them  ;  once  a  day? — A.  Yes,  sir. 

Q.  You  must  have  been  in  the  room  as  much  as  once  a  day? — A.  Yes,  sir. 

Q.  From  the  time  Mr.  Clayton  came  there  until  he  was  killed,  had  there  been  any 
change  in  the  position  of  furniture  in  that  room  ? — A.  No,  sir. 

Q.  It  was  precisely  the  same  th  s  day  he  came  there  as  it  was  the  day  he  was 
killed  ?— A.  Yes,  sir. 

Q.  You  heard  the  shot  fired  ?— A.  Yes,  sir. 

Q.  Where  were  you  then  ? — ^A.  I  was  in  my  room. 

Q.  What  did  you  do  then? — A.  What  did  I  do  ;  I  didn't  do  anything;  I  just  sat  in 
my  chair. 

Q.  Where  did  you  think  it  was  ? — A.  Well,  I  didn  t  know  where  it  was. 

Q.  When  did  j'ou  learn  first  where  it  was? — A.  From  the  gentleman  who  came  in. 

Q.  How  long  after  the  firing  of  the  shot  before  they  came  in  or  before  they  come 
to  you  ? — A.  It  wasn't  but  a  few  minutes. 

Q.  What  did  they  say  ?— A.  Mr.  Wamuck  said  he  thought  the  lamp  had  exploded, 
and  Mr.  Allnutt  said  some  one  had  killed  Mr.  Clayton. 

Q.  Did  any  of  you  go  into  the  room  to  ascertain  how  that  was? — A.  No,  sir;  we 
were  afraid  to  go  into  the  room  for  a  short  time. 

Q.  How  long  afterwards  waa  it  before  you  went  in  there? — A.  I  didn't  go  in  at  all. 
I  went  to  the  door  after 

Q.  Was  there  a  light  in  the  room  ?— A.  No,  sir;  the  explosion  put  the  lamp  out. 

Q.  Could  you  see  ?— A.  Yes,  sir ;  I  could  see  from  the  fire. 


756  CLAYTON   VS.    BRECKINRIDGE. 

Q.  There  was  a  fire-light  ? — A.  Yes,  sir. 

Q.  lu  what  position  was  Mr.  Clayton  ? — A.  I  couldn't  see  his  body ;  I  could  see  his 
feet  lying  on  the  chair. 

Q.  His  feet  were  lying  upon  a  chair  ? — A.  Yes,  sir. 

Q.  Was  the  chair  sitting  up  or  lying  down? — A.  Lying  down. 

Q.  And  liis  feet  were  on  top  of  it  ? — A.  Yes,  sir. 

Q.  How  long  was  it  before  that  or  after  that  your  son  came  np? — A.  Well,  it  wasn't 
hut  a  short  time  ;  I  couldn't  tell. 

Q.  Had  you  gone  to  the  door  at  the  time  your  son  came  up?— A.  No,  sir;  they 
come  up  on  the  porch ;  I  didn't  know  v?ho  was  there,  or  whether  it  was  some  of  the 
same  ones,  and  I  wanted  to  know  who  it  was ;  Mr.  Mundon  called  me  and  asked  me 
what  I  wanted,  and  I  knew  his  voice. 

Q.  Who  is  Mr.  Mundon? — A.  He  is  a  gentleman  from  Alabama. 

Q.  What  kind  of  a  man  is  he ;  what  nationality  ? — A.  He  had  the  appearance  of 
being 

Q.  Is  he  American  born  ? — A.  I  think  he  is. 

Q.  Who  suggested  the  propriety  of  your  son  and  young  Durham  going  down  into 
the  village  to  inform  the  neighbors? — A.  I  don't  know  who. 

Q.  Did  they  go  ? — A.  Yes,  sir ;  I  think  my  son,  Mr.  Durham,  and  Mr.  Mundon  all 
went  down,  as  uear  as  I  remember. 

Q.  Did  you  have  any  curiosity  at  anytime  to  examine  the  tracks  said  to  have  been 
about  the  window? — A.  No,  sir;  I  did  not. 

Q.  How  long  was  it  from  the  time  your  son  and  Durham  went  away  until  they  re- 
turned to  the  house  ? — A.  I  wouldn't  know;  but  a  short  time.  Just  as  soon  as  they 
could  go  down  and  back. 

Q.  How  long  do  you  think  that  was? — A.  I  couldn't  tell  yon. 

Q.  Did  the  people  of  the  town  begin  to  come  there  before  they  returned  from  the 
village  ? — A.  I  couldn't  tell  you,  for  I  never  left  my  room. 

Q.  You  didn't  go  out  ?  —A.  No,  sir  ;  I  didn't. 

Q.  Had  you  been  out  around  the  house  that  evening  at  all? — A.  No,  sir. 

Q.  Was  there  a  fire-place  in  the  room  in  which  yourself  and  your  mother  occu- 
pied ? — A.  Yes,  sir. 

Q.  You  stayed  there  most  of  the  time  ? — A.  Yes,  sir. 

Q.  Had  you  been  in  the  room  in  which  Mr.  Clayton  was  killed  at  any  time  during 
the  evening  of  the  '<i9th  of  January  ? — A.  No,  sir;  I  was  in  there  about  noon. 

Q.  You  have  no  recollection  of  being  in  there  after  dinner? — A.  No,  sir. 

Q.  What  kind  of  a  curtain  was  over  that  window  through  which  the  shot  was 
fired? — A.  A  dark  calico  curtain. 

Q.  Of  what  thickness  was  it? — A.  It  was  of  thin,  common  calico;  it  wasn't  very 
thick. 

Q.  Was  it  a  perfect  curtain? — A.  No,  sir ;  it  wasn't  a  regular  window  curtain. 

Q.  Had  it  been  torn  ? — A.  No,  sir. 

Q.  Was  it  wide  enough  to  cover  the  entire  width  of  the  window  ? — A.  Yes,  sir. 

Q.  Did  you  look  to  see  whether  that  window  curtain  was  down  or  not  that  night  ?— ^ 
A.  The  way  it  looked  next  morning  it  was  down;  it  was  down  that  evening  when 
she  went  in  there  to  fix  the  room,  and  it  looked  next  mornng  as  if  it  was  down. 

Q.  What  was  over  the  window  the  next  morning  ? — A.  That  curtain  was  over  it, 
and  a  blanket. 

Q.  When  was  the  blauket  put  up  ? — A.  It  was  put  up  during  the  night. 

Q.  Who  put  it  up  ? — A.  I  can't  tell  you ;  I  was  up  in  my  room. 

Q.  Why  was  it  put  up  ? — A.  I  don't  know. 

Q.  Do  you  know  anything  about  that? — A.  No,  sir. 

Q.  Did' you  know  it  before  morning,  that  it  was  put  up? — A.  Somebody  called  for 
a  blanket  to  be  put  over  the  window. 

Q.  After  Mr.  Clayton  was  killed  the  blanket  was  put  over  the  window  in  addition 
to  the  curtain  ? — A.  Yes,  sir. 

Q.  Did  you  see  the  curtain  next  morning? — A.  Yes. 

Q.  Was  the  curtain  in  perfect  condition  or  was  it  torn? — A.  It  was  torn  where  the 
shot  went  through  it. 

Q.  Was  that  the  only  place? — A.  Yes,  sir. 

Q.  Where  did  the  lamp  sit  in  the  room  at  the  time  Mr.  Clayton  was  shot  f — A.  It 
stood  by  that  window. 

Q.  Was  Mr.  Clayton  sitting  at  the  time  or  going  to  sit  at  the  writing  table  so  that 
lamp  would  reflect  his  position  on  that  curtain  ? — A.  Well,  I  don't  know. 

Q.  Is  it  not  true  that  the  table  was  so  close  to  the  wall  that  it  would  have  been 
possible  for  any  person  standing  out  there  north  of  the  table  to  liave  seen  Mr.  Clay- 
ton's form  reflected  on  the  curtain? — A.  Well,  I  couldn't  tell  you  ;  I  never  noticed. 

Q.  How  close  was  that  table  to  the  wall  ? — A.  It  was  sitting  by  the  wall. 

Q.  Then  Mr.  Clayton  conldn't  have  been  between  the  table  and  the  wall  ?— A.  No, 
eir. 

Q.  How  close  was  the  table  to  the  window  ?— A    Well,  the  table  was  right  at  tha 


CLAYTON   VS.    BRECKINRIDGE.  757 

fire-place,  as  close  as  it  could  be  put  lu,  and  right  iu  the  corner  of  the  roooj.  It  had 
been  sitting  there  all  winter. 

Q.  Now,  to  get  that  fixed  in  your  mind,  could  that  lamp  have  been  so  placed  on  that 
stand  as  to  reflect  the  shadow  of  any  person  on  the  curtain  of  that  window  f — A.  I 
don't  know. 

Q.  Think  it  over  in  your  mind. — A.  I  couldn't  tell  you  that. 

Q.  I  understand  you  to  say  this  table  here  was  up  in  the  corner  of  the  room? — A. 
Yes,  sir. 

Q.  Right  iu  the  corner  of  the  room  ? — A.  Yes,  sir. 

Q.  In  which  corner  ? — A.  The  north  corner. 

Q.  The  north  corner  of  the  room  ? — A.  Yes,  sir. 

Q.  How  wide  is  that  table  and  how  long  ? — A.  It  is  about  square. 

Q.  A  couple  of  feet  across  ? — A.  As  wide  as  2  feet  or  two  and  a  half — it  is  about  2 
feet,  I  think. 

Q.  That  occupied  the  north  and  east  corner  of  the  room  ?— A.  Yes,  sir. 

Q.  The  table,  theu,  was  up  in  the  corner? — A.  Yes,  sir. 

(The  witness  here  illustrated  by  a  square  piece  of  paper  the  location  of  the  furni- 
ture in  the  room. ) 

Q.  How  wide  is  that  window  ? — A.  It  is  just  a  small  window. 

Q.  Did  you  ever  observe  that  the  curtain  was  torn  before  or  until  after  Mr.  Clay- 
ton was  killed  ? — A.  No,  sir. 

Q.  Do  you  think  it  had  been  torn  before  that  time  ? — A.  No,  sir. 

Q.  Do  you  think  if  it  had  been  torn  you  would  have  seen  it  or  noticed  it? — ^A.  I 
think  I  would. 

Q.  How  long  had  the  furniture  in  that  room  occupied  the  position  it  did  when  he 
was  killed  ? — A.  We  took  the  carpet  up  immediately  after  it. 

Q.  Theu  the  position  of  f  he  furniture  had  been  changed  ? — A.  Yes,  sir,  we  changed  it. 

Q.  After  the  shooting? — A.  Yes,  sir. 

Q.  Now,  do  you  recollect  what  day  that  was? — A.  It  was  the  next  day  after  he 
was  taken  home. 

Q.  Where  was  the  bureau  ? — A.  We  stood  the  bureau  over  thou  by  the  window. 

Q.  Where  was  the  table  placed  ? — A.  As  well  as  I  remember  we  stood  the  table 
there  where  the  bureau  was. 

Q.  The  bureau  was  placed  where  the  table  was  ? — A.  Yes,  sir. 

Q.  And  the  table  was  placed  where  the  bureau  was  ? — A.  Yes,  sir. 

Q.  The  bed  remained  without  change  ? — A.  Yes,  sir. 

Q.  No  change  was  made  in  the  position  of  the  bed? — A.  No,  sir. 

Q.  I  am  not  certain,  but  think  you  told  me  you  had  been  out  during  the  evening  ? — 
A.  No,  sir ;  I  hadn't  been  out. 

Q.  To  look  out  around  the  house  ? — A.  No,  sir. 

Q.  Where  did  you  get  the  wood  you  had  been  burning  in  this  fire-place  ? — A.  Out 
on  the  south  side  of  the  house. 

Q.  I  thought  perhaps  in  the  course  of  the  evening  you  had  been  out  around  that 
place  where  you  could  have  seen  the  window  through  which  Mr.  Clayton  was  shot  ? — 
A.  No,  sir. 

Q.  You  are  usually  in  the  opposite  side  of  the  house? — A.  Yes,  sir. 

Q.  In  the  performance  of  household  duties  did  you  see  the  north  side  of  the  house  ? — 
A.  No,  sir;  not  a  great  deal. 

Q.  The  wood-pile  is  on  the  other  side  of  the  house  ? — A.  Yes,  sir. 

Q.  In  entering  the  house  did  you  enter  on  the  south  or  north  ? — A.  The  south  side. 

Q.  So  that  the  young  men  from  town  came  in  from  the  south  side  ?— A.  Most  always. 

Q.  Did  the  neighbors  coming  from  beyond  you;  did  they  come  by  that  window  or 
pass  by  it  ? — A.  No,  sir. 

Q.  They  passed  by  the  south  side  too  ? — A.  Some  come  from  the  front  or  east  side 
of  the  house. 

Q.  I  understood  you  to  say  the  next  morning  you  saw  a  hole  in  the  curtain — the 
curtain  was  torn? — A.  Yes,  sir;  where  the  shot  went  through. 

Q.  What  kind  of  a  hole  did  it  make,  if  you  remember? — A.  I  don't  remember. 

Q.  Did  it  frizzle  it  out  and  make  a  hole  through  it? — A.  It  frizzled  it  out,  as  well 
as  I  remember. 

Q.  What  was  the.size  of  the  hole,  as  near  as  you  remember  ? — A.  I  couldn't  tell  you. 
It  was  a  great  size  of  a  place. 

Q.  As  big  around  as  your  hand  ? — A..  No,  sir. 

Q.  It  cut  out  to  the  lower  part  of  the  curtain  ? — A.  It  jutted  through  over  the  lower 
point  of  the  crease. 

Q.  I  mean  did  the  hole  cut  out  through  the  lower  part  of  the  curtain  ? — A.  No,  sir. 

Q.  It  just  made  a  hole,  but  didn't  tear  it  out  all  the  way  down  ?— A.  No,  sir. 

Q    Was  that  curtain  powder-burnt  any  ? — A.  Not  as  I  ever  seen. 

Q.  I  understood  you  to  say  the  furniture  hadn't  beep  changed  in  the  room  until 
what  time  ?  Until  the  time  after  he  was  s  ot  ? — A.  No,  sir  ;  it  was  not. 

Q.  It  remained  in  the  same  precise  place  ? — A.  Yes,  sir. 


758  CLAYTON   VS.   BRECKINRIDGE. 

Q.  What  number  of  persons  have  boarded  in  the  house  during  that  time  that  Mr. 
Clayton  had  been  there,  McCord,  Mundou,  Durham,  Wamuck,  AUnutt  ?— A.  I  couldn't 
tell  you. 

Q,  Any  strangers T — A.  No,  sir;  only  some  Mr.  Clayton  brought  there. 

Q.  Where  did  you  reside  before  you  come  to  Plunimer? — A.  I  resided  in  Portlabd. 

Q.  In  what  county  and  State  is  that  ? — A.  Conway  Co. 

y.  What  direction  ?— A.  South. 

Q.  Were  yon  acquainted  with  Thomas  Hooper  in  his  life-time  t — A.  No,  sir. 

Q.  The  one  who  went  to  Cal.  ? — A.  No, sir. 

Q.  You  never  seen  him? — A.  No,  sir. 
Cross-ex. : 

Q.  How  many  people  were  in  the  room  at  the  time  this  ocoarred  f  You  say  there 
were  three  ? — A.  Boarding  there  ? 

Q.  Well,  no.  How  many  were  in  the  house  when  the  shot  was  fired ;  how  many  of 
the  family  ?— A.  There  was  Mr.  Allnutt,  and  Mr.  Wamuck  was  theie  in  the  room,  and 
they  came  into  our  room  after  the  assassination. 

Q.  Did  anybody  give  any  attention  of  any  kind  to  the  body  of  Mr.  Clayton  f — ^A.  I 
couldn't  tell  you  ;  I  never  left  my  room. 

Q.  You  didn't  ?— A.  No,  sir. 

Q.  Why  did  you  not  give  him  some  attention  ? — A.  I  was  so  frightened  that  I 
didn't  know  what  to  do,  and  I  thought  the  gentlemen  would  attend  to  that. 

Q.  Well,  how  much  did  you  charge  Judge  Clayton  for  the  damage  done  there  T — 
A.  For  the  damage  done  there! 

Q.  Yes.— A.  115. 

Q.  You  wanted  him  to  pay  some  more  than  that  ? — A.  Yes,  sir. 

Q.  How  much  did  you  want  him  to  pay  ? — A.  As  well  as  I  remember,  it  was  $30. 

Q.  Don't  you  think  it  was  a  little  steep  ? — A.  No,  sir,  I  don't ;  of  course  we  wasn't 
the  cause  of  it,  and  our  house  was  awfully  torn  up. 

Q.  You  finally  had  him  pay  you  $15? — A.  Yes,  sir. 

Mr.  Cooper.  Did  you  advise  with  anybody  as  to  how  much  you  should  oharge  f — 
A.  No,  sir. 

Q.  Did  your  mother  advise  with  any  body  down  town  as  to  how  much  you  should 
charge  ? — A.  Not  that  I  know  of. 

Mr.  McCain.  Do  you  think  $15  didn't  overpay  you  a  little. 

A.  No,  sir ;  I  don't. 

Mr.  McClobk.  Do  you  recollect  when  Gov.  Clayton  came  down  there  t — A.  To  our 
house  ? 

Q.  Yes. — A.  No,  sir. 

Q.  Do  you  recollect,  perhaps  the  day  after  Clayton's  body  was  taken  away,  that 
the  train  came  by  and  a  gentleman  came  up  ? — A.  Yes,  sir. 

Q.  Was  that  curtain  in  the  same  condition  then  as  it  was  the  next  morning  aft«r 
the  deed  had  been  done  ? — A.  Yes,  sir. 

Q.  It  was  the  same  curtain  that  hung  there  then  ? — A.  Yes,  sir. 

Q.  Was  it  the  same  curtain  that  was  there  when  the  people  came  up  after  his  body; 
the  undertaker  and  Mr.  Clayton's  brother  ? — A.  Yes,  sir, 

Q.  It  was  in  that  condition  that  you  speak  of  I — A.  Yes,  sir. 

Mr.  McCain.  How  far  was  the  shot  from  the  edge  of  the  window  sash  f 

Q.  Well,  it  didn't  seem  to  be 

Q.  Was  it  through  the  middle  pane  or  one  of  the  side  panes  t — A.  There  was  but 
two  panes  in  the  sash  in  the  small  window, 

Q,  What  was  the  size  of  the  pane  the  shot  passed  through  7 — A.  I  declare  I  couldn't 
tell  yon, 

Q.  Was  it  about  12  inches  long  T — A.  Yes,  sir ;  I  think  it  would  measure  that, 

Q.  About  as  wide  as  this  pencil,  say  6  inches  wide  or  wider  than  that  ? — A.  I  think 
they  were  wider  than  that, 

Q.  Did  it  go  through  the  middle  of  one  of  those  panes  or  through  the  edge  of  one 
of  those  panes  f — A.  I  couldn't  tell  you. 

Q.  Did  it  break  the  entire  pane  out  ? — A.  Yes,  sir ;  it  shattered  it  all  to  pieces. 

Q.  Did  it  spread  the  curtain  or  go  through  the  edge  of  the  curtain ;  or  did  it  go 
through  the  middle  of  the  curtain  ? — A.  Well,  there  is  two  pieces  of  the  curtain — two 
widths,  and  it  went  throngh  one  width  of  the  curtain, 

Q.  It  went  through  but  one  width  of  the  curtain  ? — A.  Yes,  sir. 

Mr.  Cooper.  Did  it  make  a  hole  through  the  curtain,  or  just  a  niche  in  the 
curtain  T 

A.  It  just  cut  a  niche  in  the  curtain, 

Q.  It  didn't  cut  a  hole  ? — A.  There  was  some  of  both  sides,  as  well  as  I  remember, 

Q,  Both  sides  had  a  hole  T — A,  Yes,  sir. 

Q.  Where  the  shot  went  through  ? — A.  Yes,  sir, 

Mr,  McCain.  You  think  it  -went  through  the  outer  part  of  the  curtain  there  and 

st  cut  a  notch  f 

A.  That  curtain  la  two  widths  of  calico,  and  it  wasn't  s«wed  up  all  th«  way. 


CLAYTON    VS.    BRECKINRIDGE.  759 

Q.  It  just  went  through  one  of  the  widths  ? — A.  There  was  a  piece  taken  out  of 
the  other  width,  as  well  as  I  remember. 

Q.  Now,  did  it  cut  through  the  edge  near  the  window,  or  through  the  edge  near 
the  outside  of  the  window,  or  the  middle  of  the  window? — It  went  through  that 
edge  ? — A.  Yes,  sir. 

Q.  Do  yon  remember  whether  it  took  a  part  of  that  edge,  or  did  it  make  a  hole  in 
the  middle  of  that  curtain,  or  a  piece  of  that  part  ? — A.  It  was  through  the  middle 
of  the  curtain. 

Q.  Supposing  you  had  two  curtains,  it  hung  this  way,  didn't  it  ?  [Illustrating.] — 
A.  Yes,  sir. 

Q.  Now  it  went  through  that  part  and  not  through  this  part? — A.  Yes,  sir. 

Q.  It  went  through  this  part  in  the  middle  ? — A.  Yes,  sir. 

Q.  It  struck  both  parts  ? — A.  Yes,  sir.     It  took  a  little  piece  out  of  one  side. 

Q.  And  something  more  out  of  the  other? — A.  Yes,  sir. 

Q.  Just  the  one  placeit  took  out;  or  did  the  shot  go  through  a  number  of  places?— 
A.  It  seemed  to  be  all  in  one  place. 

Q.  How  big  a  place  did  it  tear  out,  was  it  as  much  as  2  inches  or  4  inches  across 
it  ? — A.  It  wasn't  that. 

Q.  Was  it  more  than  2  inches? — A.  I  think  it  was. 

Q.  Was  it  as  much  as  3  inches? — A.  I  think  it  was.     It  was  quite  a  large  place. 

Mr.  McCi.URE.  I  understand  you  to  say,  in  the  explanation  you  are  now  making, 
that  the  curtain  was  not  all  in  one  piece? 

A.  No,  sir;  it  was  sewed  up  part  way  down. 

Mr.  Cooper.  Was  it  sewed  up  part  way  from  the  bottom  or  the  top  ? 

A    From  the  top. 

Mr.  McClure.  How  near  was  it  sewed  up  from  the  top  to  the  bottom  ? 

A.  About  midway  from  the  top  down. 

Q.  Was  thi^t  the  curtain  yon  had  at  the  time — it  was  in  that  condition  at  that 
time? — A.  Yes,  sir. 

Q.  Now  when  it  separated,  state  whether  it  was  closed  to  prevent  people  from 
seeing  from  the  outside  ? — A.  Yes,  sir;  whenever  it  was  let  down  it  was  closed. 

Q.  How  much  did  it  pass  below  the  window-sill  ? — ^A .  When  it  was  let  down  it 
came  most  to  thn  floor. 

Q.  Yon  don't  know  whether  it  made  an  opening  there  near  the  bottom  ? — A.  No, 
sir  ;  I  don't  think  it  did. 

Q.  I  understand  you  then  to  say  the  curtain  had  not  been  sewed  up  all  the  way 
down  ? — A.  No,  sir. 

Q.  It  was  in  two  pieces  of  cloth  ? — A.  Yes,  sir,  and  when  it  was  let  down  it  all 
come  together. 

Q.  How  was  it  sewed  together? — A.  On  the  machine. 

Q-  Down  to  that  point? — A.  Yes,  sir. 

Q.  How  much  did  that  lap  in  ;  you  say  it  come  together;  how  much  did  it  lap,  one 
piece  on  the  other? — A.  We  just  put  the  two  pieces  together. 

Q.  How  big  a  seam  did  you  take  about  ? — A.  I  couldn't  tell  you;  a  common  size  seam. 

Q.  Just  an  ordinary  sized  seam,  perhaps  that  distance  from  the  edge  [illustrat- 
ing] ? — A.  Yes,  sir. 

Q.  One-third  of  an  inch,  perhaps? — A.  Yes,  sir. 

Q.  Now,  wheu  that  was  put  up  there  and  hung  down  would  that  curtain  come  to- 
gether and  cover  the  edges? — A.  It  always  come  together. 

Q.  It  always  went  together  when  it  was  let  down  ? — A.  Yes,  sir. 

Q.  So  that  a  person  standing  on  the  outside  when  the  curtain  was  let  down  couldn't 
see  through  the  window  at  all  ? — A.  I  don't  think  he  could. 

Q.  Had  either  one  of  those  pieces  been  torn  ? — A.  Before  the  shot  went  through  ? 

Q.  Yes. — A.  No,  sir. 

Q-  Did  you  have  that  window  up  at  any  time  duringthe29thof  January  ?— A.  No, 
sir. 

Q.  Was  that  a  window  that  could  be  raised  ? — A.  Yes,  sir. 

Q.  You  could  raise  it  to  let  in  the  air? — A.  Yes,  sir. 

Q.  Was  it  raised  any  on  the  29th  of  January? — A.  No,  sir. 

Q.  Was  it  raised  on  the  28th  ? — A.  No,  sir. 

Q.  Do  you  think  that  window  had  been  up  at  all? — A.  No,  sir. 

Q.  The  window  had  a  sash  to  it  so  you  could  raise  it  up  and  down  that  way  ? — 
A.  Yes,  sir. 

Q.  How  many  panes  of  glass  were  there  in  the  sash? — A.  There  were  two  in  the 
sash — tour  in  the  sash. 

Q.  So  then  there  was  8  lights  in  that  window  ?— A.  Yes,  sir. 

Q.  And  ytiu  say  neither  one  of  those  pieces  of  that  curtain  had  been  torn  before 
that? — A.  No,  sir. 

Q.  If  they  had  been  you  didn't  notice  it  ? — A.  No,  sir. 

Q.  Nobody  had  access  to  that  window  that  day  except  Mr.  Allnut,  Mr.  Womuck, 
and  Mr.  Clayton  ? — A.  All  the  boarders  were  in  there. 


760  CLAYTON   VS.    BRECKINRIDGE. 

Q.  That  is  a  sort  of  sitting-room  for  the  gentlemeu  ?  A  place  they  went  iu  duriuj; 
the  day  t — A.  Yes,  sir. 

Q.  While  they  were  waiting  for  their  meals  ? — A.  Yes,  sir. 

Mr.  Bergen.  How  long  had  Mr.  Clayton  been  at  your  house  ? 

A.  Well,  I  couldn't  tell  you  the  day  of  the  month  he  came  there. 

Q.  He  had  been  there  some  days? — A.  How  many  days  ? 

Q.  Yes,  sir. — A.  He  had  been  several  days. 

Q.  Who  had  been  in  your  house  that  day  ? — A.  Well,  I  couldn't  tell  you,  there  was 
so  many  of  them  there. 

Q.  I  wish  you  would  name  them. — A.  Well,  all  the  boarders  went  there. 

Q.  Name  them. — A.  Mr.  Mundon,  Durham,  I  suppose  went  in  there,  and  J and 

Mr.  W.  T.  Hobbs,  I  suppose  they  had  all  been  in  there  during  the  day. 

Q.  They  were  boarders  ? — A.  They  were  at  that  time. 

Q.  Were  those  all  the  boarders  you  had  at  that  time  ? — A.  All  the  regular  boarders 
we  had. 

Q.  In  addition  to  that  yon  had  Mr.  McCord  there,  Mr.  Clayton,  and  Mr.  Allnutt. 
Did  you  have  anybody  else  hoarding  there  at  that  time  ? — A.  Mr.  Wamnck  came 
there  and  stayed  all  night. 

Q.  When  did  he  come  there  ? — A.  He  came  there  for  supper. 

Q.  Is  that  the  first  night  he  came  there  ? — A.  Yes,  sir. 

Q.  He  hadn't  been  there  the  night  before  ? — A.  No,  sir. 

Q.  He  took  supper  there  on  the  night  of  the  29th  of  January  ? — A.  Yes,  sir. 

Q.  Who  else  called  on  you  during  the  day  ? — A.  No  one  that  I  remember  of. 

Q.  Nobody  else  had  been  there  during  the  whole  day  ? — A.  No,  sir. 

Q.  I  thought  you  stated  a  few  minutes  ago  there  had  been  so  many  there  you 
couldn't  remember  who  ? — A.  Well — during  the  day  ? 

Q.  Yes. — A.  I  think  Mr.  Clayton,  as  well  as  I  remember,  brought  two  gentlemen 
up  there  for  dinner. 

Q.  Two  came  with  him  ? — A.  Yes,  sir. 

Q.  Who  were  they  ?— A.  I  don't  know. 

Q.  Now,  who  else  f — A.  That's  all  I  remember  of. 

Q.  Is  that  all  you  can  remember,  the  two  ? — A.  Yes,  sir. 

Q.  Now,  you  have  mentioned  all  the  persons  that  came  to  your  house  during  the 
29th  of  January,  have  you  ? — A.  All  that  I  remember  of. 

Q.  Was  this  house  a  one-story  house  f — A.  One  story. 

Q.  Which  way  does  it  face,  north,  south,  east,  or  west  ? — A.  East. 

Q.  It  faces  east?— A.  Yes,  sir. 

Q.  Has  it  a  double  front  ? — A.  No,  sir;  it  has  a  porch  m  front  and  a  portico. 

Q.  Has  it  two  rooms  ? — A.  Yes,  sir. 

Q.  And  a  hall  between  them  ? — A.  Yes. 

Q.  Aud  the  parlor  is  on  one  side  of  the  hall  ? — A.  We  dou't  have  no  parlor. 

Q.  Did  Mr.  Clayton  occupy  a  room  on  one  side  of  the  hall  ? — A.  He  occupied  the 
little  hall  to  sleep  in,  he  occupied  the  sitting-room  during  the  day. 

Q.  You  had  no  intercourse  with  anybody  while  Mr.  Clayton  was  there  at  your 
house! — A.  No,  sir. 

Q.  How  long  had  this  curtain  been  up  at  this  window  ? — A.  It  had  been  up  a  good 
while. 

Q.  How  long  had  it  been  there  at  the  time  Mr.  Clayton  was  killed  ? — A.  4  or  5 
months. 

Q.  Had  you  been  expecting  Mr.  Clayton  to  come  to  your  house  for  a  long  time  ? — ^A. 
No,  sir. 

Q.  When  were  the  rooms  engaged  for  Mr.  Clayton  ? — A.  Mr.  McCord  engaged  the 
rooms  for  himself  and  a  partner ;  he  didn't  call  Mr.  Clayton's  name. 

Q.  With  whom  did  you  talk  about  the  bills  presented  to  Judge  Clayton  after  the 
death— with  whom  did  you  talk  about  that  bill  you  made  out  of  $30  you  said,  who 
told  you  how  much  to  make  it  out  fort — A.  Ma  said  she  thought  it  would  be  little 
enough. 

Q.  You  consulted  with  your  mother? — A.  Yes,  sir. 

Q.  Who  else  did  you  consult,  or  any  one  else  ? — A.  No,  sir. 

Mr.  McCain.  You  say  you  hadn't  seen  anybody  there  that  evening  f 

A.  Any  stranger  ? 

Q.  Yes. — A.  Nor  neighbors. 

Q.  There  was  no  one  you  wasn't  accustomed  to  about  the  house  T — A.  No,  sir. 

Q.  No  unusual  visitor  had  been  there  during  the  day  ? — A.  No,  sir. 

Mr.  Lacey.  Did  you  know  of  a  barber  stopping  at  your  mother's  a  short  time  after 
the  murder — a  stranger  ? 

A.  Yes,  sir. 

Q.  How  long  did  he  board  there  ? — A.  I  couldn't  tell  yon  ;  just  a  few  days. 

Q.  What  was  his  name  ? — A.  I  couldn't  tell  you  that. 

Q.  How  old  a  man  was  he  ? — A.  He  didn't  not  look  to  be  very  old. 

Q.  Was  he  a  young  man  20  or  25  years  or  younger  f— A.  He  looked  to  be  of  that  age. 


CLAYTON   VS.    BRECKINRIDGE.  761 

Q.  Do  you  know  why  he  left? — A.  No,  sir. 
Q.  Did  anybody  talk  to  your  motlier  about  him? — A.  No,  sir. 
Q.  And  advise  you  not  to  keep  liim  ? — A.    How  is  that? 

Q.   Did  anybody  coiue  to  the  house  and  advise  yon  not  to  keep  him? — A.  No,  sir, 
Q.  You  didu't  hear  anything  of  the  kind  ?— A.  No,  sir. 
Q.  Did  you  learn  afterwards  he  was  a  detective  ? — A.  No,  sir. 

Q.  Did  you  learn  that  while  he  was  there  or  did  you  hear  it  at  any  time? — A.  No, 
sir. 

Mrs.  MARY  ANN  McCRAVEN,  recalled. 

Mr.  Bergen.  With  whom  did  you  consult  aboat  making  out  your  bill? — A.  With 
no  person  at  all. 

Q.  It  has  been  stated  here  that  you  consulted  with  some  person  out  in  town  about 
making  out  your  bill  ? — A.  No,  sir. 

Q.  Who  did  you  say  you  consulted  with  ? — A.  Nobody. 

Q.  You  didn't  ? — A.  No,  sir;  I  will  tell  yon  just  what  I  thought  ;  I  just  thought 
we  was  damaged  that  much.  I  had  all  new  carpets  and  paid  $31  for  them,  and  it 
never  looked  like  they  could  be  cleaned  up,  and  they  were  spoiled.  I  didn't  go  to 
see  people  to  consult;  I  have  just  got  a  mind  of  my  own.  That's  the  way.  I  just 
thought  I  was  injured  that  much. 

Q.  What  did  you  give  for  your  carpet? — A.  I  gave  $3l  for  that  carpet  and  the  one 
that  was  on  the  hall,  and  the  other  was  on  the  room,  and  they  were  just  as  muddy ;  I 
never  did  see  such  a  looking  house  in  my  life. 

Q.  How  much  was  your  carpet  destroyed  ? — A.  It  was  destroyed  and  it  spoiled  the 
looks  of  it. 

Q.  The  blood  didn't  cover  the  whole  of  it? — A.  No,  sir. 

Q.  Only  a  few  feet  of  it,  I  suppose  ? — A.  I  seen  there  wasn't. 

Q.  Who  canae  to  your  house  during  that  day  ? — A.  Nobody  specially  at  all,  but  the 
boarders. 

Q.  Nobody  came  around  there  to  inquire  about  Clayton  ? — A.  No,  sir;  I  never  heard 
a  person  speak  abont  him. 

Q.  Who  stayed  there  the  night  before  ? — A.  No  person  but  the  boarders,  I  don't 
think. 

Q.  Are  you  sure  of  that  ? — A.  I  tell  you  I  couldn't  state  positively,  but  I  am  going 
to  toll  everything  just  as  straight  as  I  can.  If  any  person  stayed  there  but  the 
boarders  I  don't  know  it.  Alter  Mr.  Clayton  was  killed  Mr.  Waniuck  stayed  there 
and  Mr.  AUnutt ;  that  was  the  first  night  Mr.  Allnutt  came  there  to  stay.'  He  was 
working  for  Mr.  Clayton,  so  he  said. 

Q.  How  long  had  you  had  t  ose  curtains  ? — A.  We  had  them  a  year  or  two. 

Q.  How  loug  had  you  had  that  curtain  put  up  to  that  window  in  that  room  as  it 
was  put  up  ? — A.  3  or  4  or  5  months  ;  1  couldn't  tell  you  the  time  exactly,  because  it 
was  a  dark  window  curtain  and  it  didn't  require  much  washing,  and  it  had  just  been 
hanging  there  ever  since  away  along  in  the  summer. 

Mr.  Lacey.  Now,  when  that  barber  boarded  at  your  house  how  long  did  he  stay 
there  ? 

A.  Why,  he  stayed  two  nights  and  a  day  and  then  eat  his. dinner  and  had  to  leave 
there  in  the  evening,  and  he  left. 

Q.  Did  you  learn  that  he  was  a  detective  or  hear  that  he  was? — A.  I  heard  it  said, 
but  didn't  know  it. 

Q.  Did  you  know  of  his  having  any  trouble  there? — A.  I  heard  he  had, 

Q.  What  was  the  trouble? — A.  Well,  now,  I  will  tell  you,  you  will  have  to  get 
other  folks ;  I  wasn't  there. 

Q.  Y'ou  only  know  from  hearsay? — A.  It  is  all  hearsay. 

Q.  Did  any  body  make  complaint  to  you  about  him? — A.  No,  sir. 

Q.  Did  you  have  any  talk  with  Mr.  Pate  about  him? — A.  I  heard  that,  but  it  ise't 
so.     I  have  heard  a  great  many  stories  ain't  so,  too.' 

Q.  You  only  know  how  he  came  to  leave  there  from  what  somebody  else  told  you  ?— 
A.  Well,  he  came  to  the  house  and  told  me  that  somebody  had  disturbed  him  ;  and  I 
told  him  I  would  rather  he  would  leave  there ;  that  I  didn't  want  him  to  stay  there;  I 
didn't  want  anything  that  would  cause  any  hardness ;  and  he  eat  his  dinner  and  never 
came  back  any  more  until  they  arrested  him  and  brought  him  back 

Q.  Who  was  it  first  said  anything  about  causing  any  hardness? — A  I  just  stated 
that.    You  know  we  was  in  so  much  trouble  and  I  wanted  everything  quiet  at  onr  house. 

Q.  Wasn't  you  afraid  the  person  who  committed  the  crime  wouhl  make  some 
trouble? — A.  I  have  been  in  so  much  trouble  about  that  He  went  off  withotu  pay- 
ing his  board  bill,  but  he  paid  it  after  he  came  back.  He  didu't  pay  the  money,  but 
he  just  gave  me  a  pair  of  pitchers  and  towel  and  a  razor  and  I  sold  them  and  got  the 
money. 

Mr.  McCain.  Who  was  that  man  ? 

A.  He  called  himself  Wilson,  but  I  don't  know  his  name. 


762 


CLAYTON   VS.    BRECKINRIDGE. 


Q.  What  was  his  occupation  ? — A.  He  said  he  was  a  barber.  I  don't  know  what 
he  followed,  but  be  didn't  stay  there  at  the  bouse  only  about  meal  time. 

Q,  Who  was  it  complained  of  him  ? — A.  Nobody  complained  of  him  to  me.  He  only 
come  and  told  me  and  I  didn't  know  ;  I  can't  tell  nothing  only  what  I  know.  If  I 
hear  what  ain't  so,  but  what  I  know  I  tell,  and  that's  all. 

Q.  Was  that  a  man  somebody  had  arrested  for  stealing  a  razor?  Was  there  any 
such  thing  as  that  ?  What  did  he  say  his  trouble  was  T  What  was  that  about  f — A, 
I  didn't  ask  him. 

Q.  You  don't  know  anything  about  that? — A.  No,  sir  ;  I  didn't  ask  him. 

Q.  You  don't  know  anything  about  any  complaint  being  made  ? — A.  No,  sir ;  they 
didn't  make  no  complaint  to  me. 

Q.  You  suggested  to  him  to  go  away  ;  why  was  that? — A.  Because  ho  said  he  had 
got  into  trouble  and  I  didn't  want  him  to  stay. 

Q.  Was  that  about  selling  a  razor  ? — A.  No,  sir;  it  was  something  about  a  letter ; 
I  think  he  said  something  about  his  mail  ;  but  now  I  don't  kno  w  nothiug  about  that, 
only  just  what  he  said,  and  I  told  him  I  would  rather  he  would  leave  and  that  I  didn't 
want  him  any 

Q.  What  did  he  say  ? — A.  He  just  said  he  had  got  into  trouble,  and  I  said  if  that 
was  the  case  I  wanted  him  to  go  somewheres  else. 

Q.  Tie  didn't  tell  you  what  the  trouble  was  about  ? — A.  No,  sir. 

Q.  Well,  did  he  tell  you  it  was  about  a  letter,  or  did  you  hear  that  from  some  other 
source  ?  -A.  He  said  it  was  about  his  mail ;  that's  what  he  said ;  but  I  never  asked 
him  in  what  way,  or  in  any  way. 

Q.  He  didn't  explain  the  details  to  you  ? — A.  No,  sir;  I  never  asked  him,  only  when 
he  said  that,  I  said  I  would  rather  he  would  go  somewhere  else. 

Q.  Who  was  it  that  the  trouble  with  the  razor  was  about,  if  you  remember? — A.  A 
colored  man,  I  think. 

Q  A  colored  barber  ? — A.  Yes,  sir ;  I  think  so.  Well,  I  am  satisfied  that  is  what 
they  arrested  him  and  brought  him  back  for,  but  I  don't  recollect  the  darkey's  name. 

We  herewith  give  the  diagram  of  Mrs.  McCraven's  house  as  published 
on  page  610  of  the  testimooy. 


NORTH, 


zs> 


1  and  2    Where  men  were  stam'ing. 

3.  Spot  from  which  shot  was  flretl. 

4    Window    hi-ongh  which  shot  was  fired. 

XX    Garilen  ii»t>-  where  the.v  entered. 

O.  Hole  in  the  gartlen  l'en(-r  where  they  entered ;  they  returned  the  same  w»y. 

5.  Where  fhe  p:stol  was  tbaud 

A.  Claj'ton's  position  when  «hot.  6  feet  from  window. 

B.  Where  AUnut  was  standing,  about  3  feet  in  front  and  to  Clayton's  left 

C.  Where  D.  H.  Womack  was  sittinz. 

D.  Bed. 
£.  Bed. 


CLAYTON   VS.   BRECKINRIDGE.  763 

We  have  given,  then,  the  full  testimony,  as  printed,  of  the  four  persons 
in  the  house  at  the  time  Colonel  Clayton  was  killed,  as  indispensable  to  a 
beginning  of  any  reasonable  speculations  upon  the  subject  of  his  death. 

So  far  as  we  know  all  the  theories  of  the  killing  of  Colonel  Clayton 
are  as  follows : 

First.  That  he  was  killed  by  the  men  who  stole  the  ballot-box. 

Second.  That  he  was  killed  by  the  men  who  were  under  indictment. 

Third.  That  he  was  killed  by  men  who  wanted  to  stop  inquiry  into 
the  right  of  Mr.  Breckinridge  to  hold  his  seat. 

Fourth.  That  he  was  killed  out  of  some  grudge  arising  out  of  the 
murders  committed  before  and  during  the  period  of  martial  law  under 
his  brother  Powell  Clayton's  administration  as  governor. 

Fifth.  That  he  was  killed  out  of  rivalries  and  factional  hatreds 
existing  in  the  Republican  party. 

Sixth.  That  he  was  killed  in  an  attempt  to  manufacture  a  mock  out- 
rage, and  hence  not  intentionally. 

None  of  these  theories  have  been  intelligently,  systematically,  or  ex- 
haustively inquired  into  by  the  committee,  and  some  of  them  have  not 
been  inquired  into  at  all.  At  a  glance  one  can  see  from  the  status  of 
the  question  as  left  by  the  testimony  of  the  four  witnesses  who  were  in 
the  house  at  the  time  of  the  killing  that  the  most  careful,  intricate,  and 
extensive  inquiry  would,  in  all  probability,  be  necessary.  The  diffi- 
culties the  case  had  presented  to  the  State  authorities,  to  individual 
efforts,  notably  to  those  of  the  brothers  of  Colonel  Clayton,  and  to  the 
intelligent  inquiries  of  special  agents  of  great  metropolitan  newspapers, 
all  pointed  to  the  necessity  of  great  thoroughness  if  any  reliable 
conclusions  were  to  be  reached.  It  was  known  that  ail  these  efforts 
had  been  baffled ;  and  now  a  special  committee,  backed  by  all  the 
power  and  resources  of  the  Federal  Government,  was  to  give  the  mat- 
ter an  exhaustive  and  supreme  overhauling. 

They  seem  to  have  been  dominated  by  the  unfortunate  sentiment  and 
policy  of  General  Powell  Clayton,  who,  when  governor  of  the  State 
and  engaged  in  torturing  a  previously  quiet  and  peaceful  people  into 
outbreaks,  wrote  A.  M.  Merrick,  as  shown  by  the  official  letter-copy 
book; 

Report  to  me  every  violation  of  law  and  every  outrage,  giving  all  the  facts,  as  we 
intend  using  them  as  political  capital  to  influence  Northern  elections. 

When  men  once  engage  in  the  "outrage"  business  as  a  species  of 
political  merchandise,  they  seldom  take  much  interest  in  any  discov- 
eries which  will  stop  the  source  or  use  of  the  supply. 

In  this  way  there  appears  to  be  a  settled  purpose  to  "  work  "  John 
Clayton's  death  "for  all  it  is  worth;"  and  the  State,  the  people,  and 
parties  whom  it  is  of  interest  to  accuse  are  assailed  without  testi- 
mony. 

The  best  refutation  possible,  however,  to  the  allegations  of  the  ma- 
jority is  a  plain  statement  of  the  facts  as  shown  by  the  record.  The 
first  features  to  note  are  the  expressions  of  public  sentiment  and  the 
forms  of  public  and  popular  action  in  the  premises.  Page  562  of  the 
record  discloses  the  following  information,  which  the  majority  had  to 
guide  them : 

lu  the  first  place,  immediately  upon  bearing  the  report,  Governor  Eagle  wired 
Sheriff  vShelby  to  this  effect :  "  luform  me  at  once  as  to  the  truthfulness  of  the  report 
of  murder  of  Clayton  last  night,  giving  particulars." 

To  this  Jeft'  Wright,  clerk  of  Conway  County,  in  the  absence  of  Sheriff  Shelby,  wired: 
"  Clayton  was  shot  through  a  window  in  the  early  part  last  night  and  killed;  per- 
petrators of  crime  not  known." 


764  CLAYTON   VS.    BRECKINRIDGE. 

Governor  Eagle  then  issued  the  following  proclamation  : 

PROCLAMATION  BY  THE   GOVEKNOU. 

Whereas  it  has  been  made  known  to  me  that  on  or  about  the  29th  day  ot  January 
1890,  in  the  county  of  Conway,  State  of  Arkansas,  John  M.  Clayton  was  foully  slam 
by  an  assassin  at  the  village  of  Plummerville,  in  this  State,  and  that  the  perpetrator 
of  this  fearful  crime  has  not  as  yet  been  discovered,  but  is  now  at  large : 

Now,  therefore,  be  it  known  that  I,  James  P.  Eagle,  governor  of  Arkansas,  by 
virtue  of  authority  vested  in  me  by  the  constitution  and  laws  of  said  State,  do  ofifer 
a  reward  of  |1,000  for  the  arrest  and  conviction  gf  the  perpetrator,  or  perpetrators, 
of  said  crime. 

In  witness  whereof  I  have  hereunto  set  my  hand  and  caused  the  great  seal  of  the 
State  to  be  afiSxed,  at  Little  Rock,  this  30th  day  of  January,  A.  D.  1890. 

James  P.  Eagle,  Governor. 

By  the  Governor  : 
Ben  B.  Chism, 
Secretary  of  State. 

The  govfernor  then  wrote  Sheriff  Shelby  as  follows,  indorsing  a  copy  of  the  proc- 
lamation, viz : 

State  of  Arkansas,  Executive  Office, 

Little  Rock,  Jan.  31, 1889. 

Mr.  M.  D.  Shelby, 

Sheriff  Conway  County,  Morrillton,  Arh  : 
Dear  Sir  :  Inclosed  I  hand  you  proclamation  for  reward  for  the  apprehension  and 
conviction  of  the  assassin  or  assassins  of  Hon.  John  M.  Clayton,  and  hope  it  will  serve 
to  cause  the  utmost  effort  to  be  made  to  ferret  out  the  perpetrator  of  this  crime. 

Arkansas  can  not  afford  to  rest  quietly  under  this  foul  stain,  and  it  is  not  right  that 

the  officers  should  do  so,  nor  do  I  believe  you  will  in  this  case,  but  I  trust  you  will 

spare  no  effort  to  ascertain  some  clew  that  will  enable  you  to  locate  the  man  who  has 

committed  this  greatest  of  crimes. 

Report  to  me  from  time  to  time  any  news  you  may  obtain  concerning  this  matter. 

Very  truly, 

James  P.  Eagle,  Governor. 

MESSAGE  to  THE  LEGISLATURE. 

The  governor  sent  this  message  to  the  legislature : 

Executive  Office, 
Little  Bock,  January  31,  1889. 
To  the  General  Assembly  of  the  State  of  Arkansas : 

I  am  officially  informed  that  on  the  night  of  the  29th  inst.  John  M.  Clayton  was 
foully  slain  by  an  assassin  at  the  village  of  Plummerville,  in  this  State,  and  that  the 
perpetrator  of  this  fearful  crime,  which  has  shocked  the  whole  community,  has  not 
as  yet  been  discovered.  Ac  the  time  the  deceased  was  thus  murdered  in  cold  blood, 
he  was  engaged  in  taking  testimony  in  reference  to  a  contest  for  a  seat  in  Congress, 
in  which  he  was  the  moving  party.  He  was,  therefore,  in  the  exercise  of  an  inalien- 
able right  of  citizenship,  wnich  none  could  have  any  disposition  to  thwart,  except 
the  most  abandoned  of  men.  He  was  a  man  of  most  unquestioned  integrity  and 
honor,  standing  high  in  the  esteem  of  all  classes  of  men  ;  a  man  whose  personal  con- 
duct could  not  have  given  well-grounded  offense  to  any  one. 

Under  these  circumstances,  this  revolting  crime,  if  suffered  to  go  unpunished,  is  of 
a  kind  to  bring  tlie  administration  of  justice  into  disgrace  and  to  stain  the  good  name 
of  the  State. 

Going  so  far  as  the  law  would  allow  me,  I  have  issued  a  proclamation  offering 
$1,000  for  the  arrest  and  conviction  of  the  perpetrator  of  this  lawless  deed ;  but  I 
have  felt  that  the  unprovoked  and  flagrant  atrocity  of  the  act  calls  for  unusual 
efforts  for  this  conviction,  and  the  enforcement  of  the  utmost  penalty  of  the  law. 

I  therefore  recommend  that  I,  as  governor  of  the  State  of  Arkansas,  and  in  her 
name,  be  authorized  to  offer  a  reward  sufficient  to  induce  the  making  of  every  possi- 
ble effort  to  bring  said  offender  to  speedy  justice. 

James  P.  Eagle,  Governor. 


CLAYTON   VS.   BRECKINRIDGE.  765 

The  legislature  took  up  the  matter  immediately  and  the  following  bill  was  passed 
The  Bill  Passed.— Act  X. 

AN  ACT  to  increase  tlie  governor's  contingent  fond 

Be  it  enacted  hy  the  General  Assembly  of  the  State  of  Arkansas : 

Section  1.  That  the  sum  of  $5,000  be,  and  the  same  is  hereby,  appropriated  as  a 
])art  of  the  governor's  contingent  fund,  to  be  used  in  his  discretion  in  the  procuring 
the  apprehension  of  any  notorious  criminal  who  has  been  guilty  of  recent  brutal  mur- 
der or  assassination  in  the  State  of  Arkansas. 

Approved,  February  13th,  1889. 

When  the  bill  was  passed  the  following  was  issued : 

PROCLAMATION  BY  THE  GOVERNOR. 

Whereas  it  has  been  made  known  to  me  that  on  or  about  the  29th  day  of  June,  1889, 
in  the  county  of  Conway,  State  of  Arkansas,  John  M.  Clayton  was  foully  slain  by 
an  assassin,  at  the  village  of  Plummerville,  in  said  county  and  State  and  that  the 
perpetr;  tor  of  this  fearful  crime  has,  as  yet,  not  been  arrested  but  is  now  at  large  ; 
and,  whereas,  on  the  30th  day  of  June,  ult.,  a  proclamation  was  made  by  the  under- 
signed oQ'ering  a  reward  of  $1,000  for  the  arrest  and  conviction  of  the  perpetrator  or 
perpetrators  of  said  crime:  and,  whereas,  since  said  proclamation  was  issued  a  bill 
has  been  passed  by  the  general  assembly,  now  in  session,  authorizing  the  governor 
to  oiler  a  reward  of  $5,G00 : 

Now,  therefore,  be  it  known  that  I,  James  P.  Eagle,  governor  of  Arkansas,  by  vir- 
tue of  authority  vested  in  me  by  the  constitution  and  laws  of  said  State,  in  addition 
to  the  $I.OOC  heretofore  oifered,  do  hereby  offer  an  additional  reward  of  $4,000,  mak- 
ing in  all  '15,000  offered  for  the  arrest  and  conviction  of  the  perpetrator  or  perpetra- 
tors of  said  crime. 

In  witness  whereof  I  have  hereunto  set  my  hand,  and  caused  the  great  seal  of  the 
State  to  be  aflSxed  sA,  Little  Rock,  the  14th  day  of  February,  A.  D.  1889. 

James  P.  Eagle,  Governor. 

By  the  Governor : 
Ben  B.  Chism, 
Secretary  of  State. 

This  proclamation  was  fur  warded  immediately  to  Sheriff  Shelby,  accompanied  by 
the  following  letter : 

State  of  Arkansas,  Executive  Office, 

Little  Bock,  Feb.  15,  18b9. 
M.  D.  Shelby, 

Sheriff  Conway  County : 
Sir  :  I  herewith  inclose  proclamation  of  reward  of  $4,000  for  the  assassin  of  John 
M.  Clayton,  which,  together  with  the  reward  of  $1,000  heretofore  offered,  makes 
$5,000. 

Yours,  truly, 

James  P.  Eagle,  Governor. 

To  this  letter  Sheriff  Shelby  replied,  assuring  the  governor  that  he  was  doing 
everything  he  could  in  the  matter.  A  few  days  later  he  came  to  Little  Rock,  and 
had  an  interview  with  the  governor  in  which  he  again  assured  the  executive  that 
everything  would  be  done  that  was  possible. 

The  governor  urged  upon  the  sheriff  the  importance  of  having  the  grand  jury 
make  a  thorough  investigation  of  the  matter,  to  try  to  arrest  the  evil-doers,  not  only 
the  murderer,  but  the  men  who  stole  the  ballot-box.  The  sheriff  said  he  would  leave 
nothing  undone  in  his  efforts  to  ferret  out  the  criminals,  A  meeting  of  the  governor, 
judge,  and  prosecuting  attorney  of  the  district  was  arranged,  and  took  place  at  the 
governor's  office  where  the  whole  matter  was  talked  over,  and  fully  and  thoroughly 
agreed  among  the  three  officers  that  they  were  to  enter  into  the  fullest  investigation 
possible. 

In  addition  to  this,  public  meetings  were  held  at  Morrilton,  Plum- 
merville, Fort  Smith,  Little  Keck,  Pine  Bluflf,  and  indeed  all  over  the 
State,  «lenouncing  the  crime  and  demanding  the  detection  and  punish- 
ment of  the  guilty  parties.    As  to  the  press,  Gen.  Powell  Clayton  says : 

All  the  Democratic  journals  of  the  State  at  the  time  were  vigorously  denouncing 
this  thing  in  as  strong  language  as  I  could  possibly  dictate,  if  I  should  dictate  all  of 
it,  and  urging  that  the  men  should  be  brought  to  justice.    (Testimony,  p.  557.) 


766  CLAYTON    VS.    BEECKINRIDGE. 

But  in  addition  to  all  this  public  seDtiment  otherwise  manifested 
itself  in  the  most  practical  manner.  Voluntary  rewards  were  offered ; 
$1,000  by  the  people  at  Fort  Smith;  about  $2,000 at  Little  Rock;  over 
$2,000,  all  told  nearly  $2,500,  at  Pine  Bluff";  some  hundreds  in  smaller 
amounts  from  otber  places,  aggregating  nearly  or  quite  $6,000  in  addi- 
tion to  the  official  reward  offered  by  the  State.  This  makes  a  total 
reward  of  say  $11,000,  $5,000  of  which  was  by  the  State  and  $0,000  by 
voluntary  subscription.  While  this  action  was  totally  nonpartisan,  yet 
it  is  known  that  the  action  of  the  State  government  was  by  a  Demo- 
cratic executive  and  a  Democratic  legislature,  and  the  overwhelmingly 
larger  part  off  the  voluntary  subscriptions  was  by  Democrats.  This 
should  have  tempered  the  subsequent  partisan  proceedings  of  Kepubli- 
cans,  but  it  has  not  bad  any  appreciable  effect  that  waj'.  Never  before 
in  the  history  of  the  State  had  exceeding  $1,000  been  off"ered  for  the 
arrest  and  conviction  of  a  murderer. 

Any  amount  necessary  in  the  opinion  of  the  governor  could  have 
been  raised,  but  we  have  the  evidence  of  General  Clayton  turning 
back  money  he  could  not  use,  and  of  the  Gazette,  whose  manage- 
ment and  policy  at  that  time  General  Clayton  speaks  of  so  highly, 
protesting  that  more  money  would  be  injurious  rather  than  beneficial. 
This  stands  out  conspicuously  then,  as  the  one  case  in  all  our  history 
where,  upon  the  testimony  of  all,  the  amount  offered  exceeded  the 
wants,  with  no  sign  of  exhaustion  in  willingness  to  give,  and  in  which 
more  than  half  of  it  was  by  popular  subscription,  the  State  exceeding 
any  former  offer  fivefold,  the  people  exceeding  t  sixfold,  the  total 
elevenfold,  and  as  much  more  in  reserve  if  the  governor  would  only  say 
he  needed  it.  This  is  the  conduct  of  the  governor,  the  legislature,  and 
the  people  of  a  State  that  the  majority  tells  you  needs  to  be  bound  by 
new  and  coercive  laws. 

In  the  face  of  these  proceedings  there  appeared  a  remarkable  cam- 
paign document,  signed  by  General  Powell  Clayton  and  Mr.  W.  H.  H. 
Clayton.  General  Clayton  says  it  was  issued  several  days,  "  four  or 
five,"  after  the  funeral.  It  appeared  simultaneously  in  the  leading 
newspapers  of  the  country,  evidently  having  been  furnished  to  the 
"  Associated  Press,"  and  as  it  was  in  the  Washington  Post  of  Febru- 
ary 4,  the  sixth  day  after  Colonel  Clayton's  death,  it  was  issued  on 
the  3rd,  just  three  days  after  the  funeral.  The  composition  of  it  began, 
and,  indeed,  it  was  issued,  before  the  term  for  the  court  had  begun ; 
before  very  exhaustive  investigations  could  have  been  made,  and  be- 
fore the  ''  vigorous  denouncing"  by  "  all  the  Democratic  journals  of  the 
State"  and  the  ample  rewanis  could  have  had  a  full  opportunity  for 
their  full  and  fair  effect.  As  this  is  a  comprehensive  and  initial  outline 
of  a  policy,  we  iusert  it  in  full : 

Powell  and  W.  H.  Clayton  tell  the  tale  of  John  Clayton's  mnrder — they  stamp  it  a 

political  crime,  and  recount  the  precedinj?  incidents  indirectly  connected  with  it. 

Gen.  Powell  Clayton  and  Judge  W.  H.  H.  Clayton,  brothers  of  the  Hon.  John  M. 
Clayton,  who  was  assassinated  on  the  night  of  January  29th,  have  furnished  the 
following  statement  to  the  Gazette  for  the  iJenefit  of  the  public : 

That  the  public  may  understand  the  circumstances  leading  up  to  and  onlminating 
in  the  assassination  of  our  brother,  John  M.  Clayton,  we  desire,  over  oar  own  signa- 
tures, to  make  the  following  statement  of  facts: 

All  agree  that  this  was  a  political  assassination.  It  will  be  therefore  necessary  for 
us  to  refer  to  the  political  condition  and  circumstances  surrounding  it.  We  do  this 
iu  no  partisan  spirit,  butonly  that  justice  maj^  be  done  to  the  memory  of  our  brother, 
and  that  a  knowledge  of  the  facts  which  led  to  his  assassination  may  induce  the 
people  of  this  State  to  correct  the  evils  from  which  this  and  other  great  crimes  have 
sprung,  and  that,  however  sad  the  circumstances  may  be  to  us,  his  martyrdom  may 
result  in  good  to  the  people  of  this  and  other  States.  Although  since  the  commence- 
meut  of  the  last  political  canvass  fox  State  officers  in  Arkansas  many  political  crlmeii 


CLAYTON    VS.    BRECKINEIDGE.  767 

have  been  committed  in  different  parts  of  the  State,  in  this  statement,  however,  wa 
will  confine  onrvselves  to  the  limits  of  Conway  County,  within  which  Plummerville^ 
thf  scene  of  this  mnrder,  is  situated,  and  only  to  those  circumstances  which  in  our 
opinion  led  to  the  commission  of  the  crime. 

Prior  to  the  September  election  and  during  the  canvass  a  political  club  was  organ- 
ized at  Morrillton,  the  county  seat  of  Conway  County,  with  one  Stowers,  fresh  from; 
Mississippi,  at  its  head.  The  club  soon  after  resolved  itself  into  a  militia  company,, 
and  about  two  week-  before  the  election,  at  a  time  of  profound  peace  in  the  county,, 
the  Hon.  Simon  P.  Hughes,  then  governor,  not  only  supplied  it  with  State  arms,  but 
furnished  it  with  a  full  supply  of  ammunition.  This  was  the  beginning  of  the  trouble; 
in  Conway  County. 

From  this  time  until  the  day  of  election  Stowers,  with  his  armed  partisans,  almost 
daily  paraded  the  streets  of  Morrillton.  On  election  day  their  guns  were  deposited,, 
loaded  and  ready  for  action,  in  a  convenient  place  in  the  building  in  which  the  elec- 
tion was  held.  On  the  morning  of  that  day  the  Republican  judge  of  election,  on  hia 
way  to  assume  the  duties  of  his  office,  on  a  frivolous  and  preconcerted  pretext,  was- 
arrested,  whereupon  Stowers  with  his  men  marched  to  the  polls,  and  upon  his  nomi- 
nation and  their  votes  another  person  was  declared  elected  to  fill  the  vacancy. 

By  these  unlawful  proceedings  the  election  board,  composed  of  citizens  representing 
both  political  parties,  was  made  solidly  Democratic. 

Whether  Stowers  and  his  men  at  this  time  were  acting  as  a  political  club  or  as  £^ 
company  of  State  militia  we  are  not  advised,  but  certain  it  is  their  loaded  guns  were 
near  at  hand. 

While  at  Morrillton  these  things  were  being  done  the  citizens  of  the  town  of  Plum- 
merville,  who  were  nearly  all  politically  opposed  to  our  brother,  while  those  of  the 
farming  parts  of  the  precinct  were  his  political  friends  (the  latter  greatly  outnumber- 
ing the  firmer),  collected  at  the  voting  place  long  before  the  hour  fixed  by  law  for 
the  opening  o*"  the  polls,  and  organized  a  full  set  of  election  officers  of  their  party. 
When  the  two  Republican  judges  returned  they  found  their  places  usurped  and  the 
election  in  full  blast. 

The  result  of  the  September  election  so  conducted  in  Conway  County  was  a  com- 
plete change  of  its  political  status  so  far  as  its  officers  were  concerned,  but  not  as  to 
the  sentiments  of  its  people  under  these  changed  conditions.  About  two  mouths 
thereafter  the  Congressional  election  occurred,  John  M.  Clayton  bein"  the  Repub- 
lican candidate  and  C.  R.  Breckinridge  the  Democratic.  The  day  before  this  elec- 
tion M.  W.  Benjamin,  a  'prominent  Republican  lawyer  of  Little  Rock,  and  one  of 
Arkansas's  best  citizens,  was  sent  to  Conway  County  by  theRepublican  State  central 
committee,  with  instructions  to  use  his  beenb  end0av«rs  to  secure  an  honest  election. 
On  his  arrival  at  the  depot  at  Morrillton  he  was  confronted  by  an  infuriated  mob  of 
several  hundred  citizens,  who  threw  him  from  the  cars,  assaulted  and  beat  him, 
pulled  from  his  face  handfuls  of  beard,  and  met  all  of  his  appeals  to  their  humanity 
with  kicks  and  cuffs  and  by  shooting  him  in  the  forehead  with  a  weapon  of  sufficient 
force  to  embed  and  flatten  a  bullet  on  his  skull.  A  short  time  after  this  Mr.  Benja- 
min died,  telling  his  wife  before  his  death  that  his  sufferings  were  due  to  the  treat- 
ment received  at  the  hands  of  the  Morrillton  mob. 

On  the  following  day,  being  the  day  of  the  election  at  Plummerville,  at  the  hour 
for  opening  the  poll8,  the  two  Republican  judges  were  on  hand  ready  to  perform  their 
duties,  but  were  ignored  by  the  Democratic  judge,  who  put  in  nomination  two  mem- 
bers of  his  own  party,  and  upon  a  mere  affirmative  vote,  without  putting  the  nega- 
tive, declared  them  elected,  and  they  were  installed.  The  Republican  judges,  not 
being  permitted  to  act,  accompanied  by  the  Republican  United  States  supervisor, 
undertook  to  open  polls  elsewhere,  but  were  notified  by  Democratic  deputy  sheriffs, 
five  of  whom  were  present,  that  they  would  not  be  permitted  to  do  so.  Under  these 
and  other  threats,  they  abandoned  their  purpose,  and  the  Republican  supervisor  re- 
turned to  where  the  election,  as  first  organ  ized,  was  being  held,  where  he  remained  in 
the  faithful  performance  of  his  duty  until  the  polls  were  closed ;  whereupon  the  elec- 
tion jndge,  by  whose  illegal  action  the  board  was  organized,  as  before  stated,  took 
the  ballot-box  and  carried  it  from  place  to  place  through  the  town,  followed  however, 
by  the  faithful  supervisor,  Charles  Wahl.  At  last,  finding  that  he  could  not  shake 
him  off,  he  and  the  supervisor  returned  about  9  o'clock  at  night  to  the  voting  place, 
finding  one  of  the  other  judges  there.  Remaining  a  few  minutes,  he  again  left,  at- 
tempting to  carry  the  box  with  him,  which  he  only  desisted  from  doing  by  the  em- 
phatic insistance  of  the  supervisor  that  the  box  should  be  left  at  the  polling  place 
with  the  other  judge  who  was  there. 

About  one- half  hour  thereafter  four  masked  and  armed  men  rushed  into  the  room 
and  at  the  muzzles  of  their  pistols  compelled  the  remaining  jndge  and  supervisor  to 
turn  their  backs,  whereupon  they  seized  the  box  and  poll-books  and  cariied  them 
away.  We  are  informed  by  Wahl  and  other  credible  persons  that  the  box  so  stolen 
contained  697  ballots,  of  which  at  least  372  were  cast  for  John  M.  Clayton 

Upon  hearing  of  these  unlawful  acts,  together  with  many  others  in  different  parts 


768  CLAYTON    VS.    BKECKINKIDGE. 

of  his  district,  he,  Clayton,  felt  it  to  be  his  duty  to  institute  a  contest  for  his  seat  in 
Coujiress,  and  for  the  purpose  of  ascertaining  the  actual  vote  cast  for  him  at  the 
Plumuierville  precinct,  that  he  raight  ingraft  that  fact  in  his  notice  of  contest,  he 
employed  a  responsible  citizen  named  Alexander,  of  the  Plumraerville  precinct,  to  ob- 
tain the  names  of  those  who  voted  for  him,  who  obtained  the  names  of  over  450  such 
voters,  when  on  the  17th  of  September  his  work  suddenly  terminated  by  reason  of 
the  events  which  we  now  proceed  to  detail. 

On  the  seventeenth  of  December  Wahi,  the  aforementioned  supervisor,  "was  in- 
veigled into  a  game  of  cards  at  night  in  the  back  room  of  a  doctor's  office  in  Plum- 
raerville, where  he  was  seated  in  close  proximity  to  a  glass  door,  through  which  he 
"was  shot  by  a  would-be  assassin,  the  ball  piercing  the  top  of  his  left  ear  and  cutting 
a  gash  in  his  neck  about  three  inches  long;  Wahl  fled  to  the  house  of  the  afore- 
mentioned Alexander,  where  he  remained  until  daylight,  after  which  he  reached  his 
home  and  soon  after  repaired  to  Little  Rock,  where  he  now  remains  for  safety.  This 
attempt  on  the  life  of  Wahl  so  alarmed  Alexander  as  to  cause  him  to  abandon  his 
work  and  fly  from  the  State. 

For  the  crimes  above  enumerated  no  man  has  been  arrested  by  State  or  county 
authorities,  nor  has  any  official  reward  been  ottered.  John  M.  Clayton  went  to  Pliim- 
merv  I  lie  unarmed  and  unescorted,  recognizing  the  futility  of  such  precautions  against 
the  stealthy  assassin,  and  believing  that  his  opponent,  Mr.  Breckinridge,  who  was 
Siware  of  the  condition  of  afl'airs  in  this  county,  would  be  willing  and  able  to  restrain 
his  partisans.  While  passing  through  Little  Rock  on  his  way  there  he  said  to  Hon. 
Henry  M.  Cooper,  in  response  to  a  suggestion  of  danger:  "1  do  not.  believe  that  I 
will  Ije  harmed,  but  the  men  who  voted  for  me  believe  I  was  elected  and  so  do  I,  and 
I  will  go  there  even  at  the  risk  of  my  life."  And  so  he  went.  After  having  engaged 
for  several  days  in  takiug  testimony,  about  9  o'clock  p.  m.  of  January  29,  while  in 
his  room  at  his  boarding-house,  in  the  act  of  sitting  down  at  a  table  near  a  window 
to  write  to  his  motherless  children,  he  was  shot  through  the  window  by  concealed 
assassins  a  few  feet  from  him,  and  instantly  killed.  We  were  unable  to  remove  his 
body  until  3.30  o'clock  p.  m.  of  the  next  day,  up  to  which  time  the  sheriff  of  the 
county  had  not  appeared,  being,  in  the  language  of  his  deputy,  engaged  in  the  more 
important  business  of  collecting  taxes.  Nor  had  any  citizens  of  the  town  made  the 
slightest  effort  to  trace  or  apprehend  his  murderers.  The  foregoing  facts  we  stand 
ready  to  substantiate  in  every  essential  particular,  every  one  of  which  we  believe  to 
be  a  material  link  in  the  chain  of  circumstances  surrounding  and  leading  to  the  in- 
human murder  of  our  brother,  John  M.  Clayton. 

Powell  Clayton. 
W.  H.  H.  Clayton. 

The  first  lines  assume  a  comprehensive  conspiracy  spreading,  infer- 
entially,  at  least,  over  the  county,  district,  and  State,  as  a  fact.  Every- 
thing stated  are  "facts."  The  State  authorities  and  the  people  are 
practically  requested  to  give  over  any  attempts  to  vindicate  the  memory 
of  John  M.  Clayton.  The  reasonable  suspicion  that  his  death  grew  out  of 
political  difficulties  that  had  arisen  at  that  precinct  is  crystallized  into 
the  proposition  in  the  broadest  terms,  and  here  given  the  broadest  con- 
struction by  application,  that  "all  agree  that  this  was  a  political  assas- 
sination;" Mr.  Breckinridge  is  accused  of  a  lack  of  "ability  to  restrain 
his  partisans;"  a  general  reflection  upon  his  supporters  thus  generally 
indicted,  or  of  not  being  "  willing"  to  do  so;  and  on  this  broad  and 
settled  basis  a  general  reform  movement  is  started  to  cover  "  this  and 
other  States." 

To  such  wrongs  as  existed — and  governments  always  find  something 
to  do — the  State,  circuit,  and  county  governments  were  addressing 
themselves  with  a  zeal  that  gave  security  to  capital  and  citizens,  and 
remarkable  and  undiminished  immigration  and  prosperity  attest  it. 
Even  negroes  have  continued  to  come  into  the  State  as  was  never 
known  before,  so  much  so  as  to  seriously  disturb  the  supply  of  labor  in 
eastward  and  older  Southern  States.  No  "  official  rewards  "  were  offered 
for  certain  offenses  when  it  is  known  that  the  law  did  not  provide  for 
rewards  m  such  cases,  halfof  which  here  are  grossly  exaggerated  and 
the  other  half  are  false.  Democratic  and  Republican  rewards  were 
out  for  the  ballot-box  thieves,  and  the  then  management  of  the  Gazette 


CLAYTON  VS.   BRECKINRIDGE.  769 

protested  against  its  being  increased.  Any  careful  reader  of  this  re- 
port will  see  how  many  of  these  reckless  and  partisan  statements  have 
been  proven  before  the  Federal  court  and  by  overwhelming  testimony 
before  the  subcommittee  to  be  unfounded. 

The  citizens  of  the  town  are  reflected  upon  as  if  all  of  them  were 
Democrats  and  in  sympathy  with  murder,  when  it  was  well  known  that 
the  township  is  strongly  Republican  and  that  Republican  officials  and 
citizens  had  acted  in  the  same  way  as  the  Democrats,  and  that  all  were 
bewildered  and  utterly  without  a  trace  except  the  tracks  in  the  garden 
and  the  pistol  that  was  found  near  by.  Then  it  closes  with  these 
words : 

The  foregoing  facts  we  stand  ready  to  substantiate  in  every  essential  particular, 
every  one  of  which  we  believe  to  be  a  material  link  in  the  chain  of  circumstances 
surrounding  and  leading  to  the  inhuman  murder  of  our  brother,  John  M.  Clayton. 

And  yet,  when  called  upon  to  prove  them,  Mr.  W.  H.  H.  Clayton  re- 
sponded in  the  following  language : 

We  have  published  the  statement  made  by  us  of  those  facts,  and  it  seems  to  us 
that  the  burden  of  proof  to  disprove  them  is  npon  the  other  gentlemen.  (Testimony, 
p.  437.) 

When  General  Clayton  is  similarly  questioned  about  such  matters  it  is : 

Well,  I  don't  know  about  that.  It  seems  that  even  if  evidence  was  procured  it 
would  be  almodt  impossible  to  hang  them  in  that  county. 

And, 

Oh,  I  can't  make  any  suggestions.  Well,  I  don't  know  what  the  State  has  done. 
The  State  may  have  done  everything  it  is  required  to  do — I  don't  know.  (Testimony, 
p.  559.) 

And  so  it  is.  They  all  know  it  for  politics,  but  none  of  them  know 
anything  for  conviction. 

We  do  not  say  that  Powell  Clayton,  so  potential  with  the  majority, 
desired  to  prevent  the  detection  and  punishment  of  the  supposed  mur- 
derers of  his  brother,  which  of  course  would  stop  the  use  of  that  event 
as  political  capital ;  but  we  do  say  that  this  is  exactly  the  kind  of  an  ad- 
dress best  calculated  to  insult  the  public,  to  cool  and  drive  off  popular 
support  from  him,  if  not  from  the  whole  question,  and  to  thus  leave 
the  whole  matter  more  exclusively  in  his  own  hands. 

It  was  in  the  face  of  these  features  that  the  legislature  passed  the 
additional  reward  act  approved  February  13,  1889,  and,  handicapped 
by  this  injudicious  quarrel,  the  efforts  at  detection  began.  The  act  was 
delayed  by  having  first  passed  one  house  in  a  form  of  doubtful  consti- 
tutionality, and  this  had  to  be  considered  and  corrected.  The  law  of 
the  State  does  not  provide  for  expenditures  for  detectives,  but  upon  the 
theory  of  stimulating  activity  by  a  reward  for  "  arrest  and  conviction." 
The  private  subscriptions  had  been  made  upon  this  customary  theory. 

Hence  for  the  time-being  the  proceedings  consisted  of  what  took 
place  under  this  theory  of  expenditure,  and  of  the  personal  expendi- 
tures of  General  Clayton  and  his  brother. 

Whatever  may  have  been  the  theories  and  suppositions  previously 
held  as  to  the  stealing  of  the  ballot-box,  whether  it  was  done  by 
Democrats  to  prevent  the  counting  of  the  vote,  or  by  negroes,  as  they 
threatened  to  do,  as  the  Democrats  had  all  the  clerks  and  judges  of 
election  at  this  box,  and  the  negroes  said  they  thought  they  were  going 
to  "  stuff"  it,  or  by  white  Republicans  from  the  same  fear  or  to  make 
a  pretext  to  start  a  contest  in  case  the  actual  vote  should  run  close 
H.  Mis.  137 49 


770  CLAYTON   VS.   BRECKINRIDGE. 

and  the  new  Honse  should  be  Republican;  or  whatever  it  may  have 
been,  tho  generally  acc<  pted  idea  was  that  the  men  who  stele  the  box, 
or  the  men  in  that  connty  and  locality  who  were  under  indictments, 
to  which  reference  has  been  made,  were  the  parties  guilty  of  the  mur- 
der. In  a  political  way  sympathies,  etc.,  were  charged  to  extend  further, 
as  shown,  but  general  suspicion  located  the  actual  doers  of  the  deed  in 
this  group. 

The  first  thing  to  determine,  before  relating  subsequent  proceedings, 
is  this  list  of  men.  They  come  under  two  heads,  the  indicted  men  and 
the  ballot-box  thieves.  The  men  under  indictments  are  easy  to  identify, 
for  their  names  appear  in  the  court  records.  It  is  difficult  to  assume 
that  the  election  officials  stole  their  own  box,  for  with  the  fondness  for 
whisky  that  the  Republican  Supervisor  Wahl  relates  of  himself  on  page 
347  of  the  testimony,  it  would  have  been  easy  to  have  disqualitie«t  him 
for  inspection  duty.  Then,  the  officials,  being  all  of  one  party,  could,  if 
they  wanted  to  do  wrong,  have  stutted  the  box  instead  of  stealing  it. 
But  if  they  are  suspected  they  at  least  are  known.  The  only  other 
Democrats  ever  mentioned  in  this  connection  with  suspicion,  either  di- 
rect or  remote,  so  far  as  the  rec<ird  shows  or  we  have  any  knowledge, 
are  first,  Dr.  B.  G.  White  and  W.  G.  Palmer,  citizens  of  Plummerville, 
and  the  posse  that  came  to  Plummerville  that  night  from  Morrillton. 
Various  witnesses  state  who  these  men  were.  There  was  no  conceal- 
ment as  to  who  composed  the  posse. 

Some  of  the  men  charged  with  stealing  the  ballot-box  w  ere  also  under 
indictment  upon  other  charges  ;  but  these  two  lists  and  these  two  citi- 
zens embrace  every  Democrat  suspected  of  the  killing  under  the  two 
theories,  if  they  may  be  separated,  that  he  was  killed  by  the  ballot-box 
thieves  or  by  the  men  laboring  under  indictments.  If  none  of  the  Dem- 
ocrats enumerated  stole  the  box,  then  presumably  no  Democrat  stole 
it.  That  we  conclude,  and  as  the  majority  hold  that  some  of  these  men 
did  it,  then  they  must  hold  the  same  belief.  But  all  of  these  men  are 
known.  They  are  not  numerous,  and  their  names  are  all  in  the  testimony. 
They  are  as  well  known  and  as  clearly  identified  as  if  they  had  been 
convicted  by  the  Federal  court  of  the  ottenses  charged,  instead  of  hav- 
ing been  acquitted,  as  they  were.  Of  course  their  acquittal  upon  these 
charges  does  not  prove  that  none  of  them  committed  the  murder.  But 
these  charges  were  for  ofienses  real  or  alleged  along  in  November,  1888, 
and  the  killing  was  done  on  the  29th  of  January,  1889. 

Other  facts  and  circumstances  must  be  established  as  a  new  crime  was 
committed.  They  might  have  committed  the  first  crimes  and  not  the  last 
one.  They  would  have  to  be  tried  separately.  Therefore  their  acquittal 
by  the  Federal  court  is  no  embarrassment  to  this  inquiry,  for  all  admit 
that  this  list  of  names  includes  all  of  those  wlio  could  possibly  have 
been  guilty  under  these  theories,  for  we  can  not  assume  tbat  if  Repub- 
licans stole  the  box  they  would  on  that  account  have  killed  Colonel  Clay- 
ton ;  and  no  Republicans  in  this  county  were  being  either  prosecuted  or 
persecuted  by  indictment  or  otherwist^.  Hence,  for  the  purposes  of  this 
inquiry  let  us  assume  that  all  these  Democrats  were  guilty  of  the  pre- 
vious acts,  real  or  alleged,  as  charged  against  them,  and  with  these 
two  lists  we  are  as  completely  equipped  as  it  is  possible  to  be  for  this 
line  of  investigation.  These  facts  were,  of  course,  as  well  known  to 
the  detectives  and  the  State  as  they  are  to  us,  and  we  must,  judge  of  the 
results  of  their  efibrts  in  the  light  of  them. 

The  rewards  of  course  stimulated  generally  to  suspicion  and  search ; 
but  firml.N  impressed  with  the  foregoing  theory,  as  General  Clayton  and 
his  brother  frequently  say  they  were,  and  as  nearly  everybody  was, 


CLAYTON    VS.    BRECKINEIDQE.  771 

their  eflFbrts  can  best  be  stated  in  their  own  language.    W.  H.  H.  Clay- 
ton details  the  matter  as  follows : 

After  he  was  buried  we,  of  course,  took  steps  to  ascertain  who  the  murderers  were. 
My  brother  Powell  aud  myself  wrote  a  statement  to  give  to  the  State  press.  We  then 
sat  down  to  devise  some  method  and  some  means  by  which  we  could  apprehend  who 
the  murderers  were.  At  Pine  Bluif,  before  we  left  there,  we  wrote  to  Pinkertons  to 
send  us  their  best  man.  Before  we  left  Pine  Bhiflfl  believe  we  received  a  letter  from 
Piukerton  stating  that  they  would  send  a  man  by  the  name  of  Woods  here,  that  they 
regarded  as  one  of  the  best  men  they  had.  He  came  to  Little  Eock,  and  when  we 
came  over  we  found  him  here.  We  employed  him  and  gave  him  unlimited  charge. 
We  paid  him  at  the  rate  of  $8  a  day,  all  his  expenses,  and  we  paid  every  necessary 
expense,  or  every  expense  he  thought  necessary,  such  as  employing  other  men,  send- 
ing them  into  the  country,  sending  them  into  Plummerville  iu  a  thousand  different 
ways,  anytning  he  might  suggest;  we  gave  him  earte-blanche to  go  aheatl  and  we 
would  pay  the  bill,  make  it  whatever  he  pleased.  He  made  his  reports  in  the  first 
place  to  me  ami  afterwards  to  to  my  brother.  I  sent  those  reports  to  my  brother  and 
he  sent  them  to  Mr.  McClure.  Nothing  was  accomplished,  however.  In  a  short  time 
after  that  we  saw  him  here.  We  revised  our  plans,  my  brother  and  I.  My  brother 
and  I  called  on  Governor  Eagle  for  the  purpose  of  urging  him  to  do  whatever  he 
could;  we  received  very  kind  attention  at  his  hands,  and  thought  at  that  time  that 
he  would  do  everything  that  he  conld  to  assist  us  in  the  premises.  I  went  and  wrote 
to  Judge  Cunningham,  judge  of  the  circuit  court,  and  to  Mr.  Carter,  the  prosecuting 
attorney,  asking  them  to  grant  me  an  interview.  They  stated  to  me  they  would.  1 
went  d«wn  and  saw  them,  and  I  think — I  thought— got  their  hearty  co-operation  as 
far  as  those  two  officers  were  concerned ;  and  I  think  those  two  gentlemen  did  all  in 
their  power.  From  that  time  on  we  have  done  everything  we  could  in  our  power  to 
find  out  who  these  men  were.     (Testimony,  p.  424.) 

Again  he  says,  on  page  435 : 

I  have  spent  thousands  of  dollars  in  that  direction. 

As  the  result  of  all  this  he  says : 

Wherever  we  could  find  a  clue  we  run  it  far  enough  to  see  there  was  nothing  in  it. 
(Testimony,  p.  440.) 

Also : 

Our  theory  has  always  been  that  the  politicians  of  Conway  County  did  this  thing 
(p.  440). 

Also: 
And  all  the  facts  we  had  pointed  in  that  direction  (p.  440). 

Also: 

But  I  will  state  now  we  have  no  sufiScient  proof,  nor  do  we  know  of  anybody  who 
does;  we  have  a  great  many  suspicious  circumstances,  and  everything  seem  to  point 
in  one  direction  (pp.  435  and  436). 

Also : 

A  thousand  little  impressions  have  been  made  on  my  mind  in  the  investigation  of 
this  matter  (p.  427). 

He  also  says,  on  pages  426-7,  that  he  thinks  men  in  Little  Book  were 
concerned  in  it. 
Again,  on  page  442,  he  refers  to  O.  Bently  and  Robert  Pate  as 

The  two  men  we  believed  to  be  the  murderers  of  my  brother. 

And  on  page  436,  in  speaking  of  the  guilt  of  his  brother's  murder, 
he  says : 

Perhaps  it  extended  as  far  as  Pine  Bluff. 

This  testimony  was  nearly  all  in  response  to  questions  addressed  by 
Mr.  Breckinridge,  who  concluded  as  follows : 

Mr.  Bkeckinridgk.  I  will  ask  in  a  general  way  if  you  have  the  names  of  any  par- 
ties that  this  committee  can  interrogate  that  can  fix  guilt  on  any  body  in  regard  to 
this  offense;  and  if  so,  if  you  will  furnish  them  to  the  chairman. — A.  We  will  see 
what  we  can  produce  during  the  investigation ;  Judge  McClure  has  that  in  hand,— 
(P.  443.) 


772  CLAYTON   VS.   BEECKINRIDGE. 

General  Powell  Clayton's  responses,  if  not  so  scattoring,  were  even 
more  vague  and  general.    The  sum  of  it  is  about  as  follows: 

I  mean  to  say,  if  John  M.  Clayton  had  not  been  a  Republican  he  -woHld  neverhave 
been  assassinated.  I  mean  to  say  if  he  hadn't  been  a  candidate  for  Congress  in  that 
Second  Congressional  district,  he  would  never  have  been  assassinated.  If  he  had 
not  been  investigating  the  stealing  of  the  ballot-box  and  making  a  contest  in  that 
election  there,  he  would  not  have  been  assassinated. — (P.  5."t7.) 

This  is  broad  enough  to  cover  anylbiug  you  want,  dexterous  enough 
to  point  anywhere  you  want,  and  vague  enough  to  keep  you  from 
catching  anybody.  He  might  have  added  with  equal  propriety  that 
if  he  had  not  been  at  Plummerville  he  would  not  have  been  killed. 

Judge  McClure  has  taken  no  special  action  as  indicated  by  Mr.  W. 
H.  H.  Clayton,  so  far  as  we  know. 

The  most  important  witness  in  connection  with  this  theory,  and  in- 
deed in  connection  with  the  whole  case,  would  seem  to  be  the  chosen 
detective  sent  by  the  Pinkerton's,  a  man  skilled  above  all  others,  who 
have  been  associated  with  the  case,  and  who  has  been  so  abundantly 
8ui)plied  with  facilities  and  money  as  Mr.  Clayton  describes.  General 
Clayton  speaks  of  him  a«  ''the  best  detective  talent,"  on  page  556. 
Then  he  says  he  then  thought  "  the  men  who  stole  the  ballot  box  were 
probably^  behind  the  oflense  covering  their  own  transactions." 

Nor  had  he  any  difficulty  in  getting  men  to  work.  Mr.  Clayton  says, 
page  440,  that  "  a  hundred  men  wanted  to  go  into  the  field  as  detect- 
ives ;"  and  elsewhere  we  quote  him  as  to  sending  men  everywhere  for 
Wood.  We  don't  know  what  the  testimony  of  this  detective  who  had 
"  charge  "  of  the  case  would  be.  Mr.  Brecki  nridge  says  he  doesn't  know. 
But  we  presume  it  would  be  the  truth.  A  full  examination  of  him  is 
indispensable  to  an  exhaustion  of  the  case.  Mr.  Breckinridge  offered  to 
I)ay  his  expenses  to  Little  Rock.  He  was  refused  his  urgent  request  to 
have  him  there,  but  was  positively  promised  that  he  should  be  here. 
He  is  still  refused.  He  is  likewise  promised  and  subsequently  refused 
as  to  Mr.  Carter,  the  prosecuting  attorney,  Judge  Cunningham,  the 
judge  of  the  district,  both  so  approvingly  spoken  of  by  the  Claytons. 
Also  as  to  Coblentz,  the  Republican  who  found  the  pistol,  as  to  the 
Meacham  Arms  Company  and  their  invoice  books,  from  whom  we  know 
the  pistol  came.  All  of  these,  acknowledged  at  the  time  as  most  im- 
portant witnesses,  are  promised  to  be  called  at  Washington,  as  well  as 
others,  and  they  are  afterwards  refused.  There  is  something  very 
strange  about  all  this.  Wood  seems  to  have  found  out  something  or  to 
have  formed  some  opinion  that  is  not  wanted.  All  the  push  seems  to 
have  been  taken  out  of  the  majority.  They  won't  go  ahead.  They 
won't  even  keep  their  promises  which  are  already  out.  Is  this  "  thor- 
ough f  Is  it  just  to  Mr.  Breckinridge  and  others  whom  they  fiercely 
accuse  ? 

If  other  theories  have  failed  does  not  that  make  this  conduct  all  the 
more  significant? 

The  proceedings  of  Governor  Eagle  and  Sheriff  Shelby,  of  Conway 
County,  are  so  intimately  connected  that  we  will  consider  them  to- 
gether, and  what  we  say  under  this  head  will  comprise  an  account  of 
all  that  remains  to  be  said  in  connection  with  the  killing  of  Colonel 
Clayton  in  the  present  incomplete  state  of  the  investigation.  The  gov- 
ernor's action  upon  the  instant  of  hearing  of  the  death  of  Colonel 
Clayton,  previously  related,  was  that  of  a  good  and  capable  man, 
and  it  has  been  most  conscientious  throughout.  He  has  so  far  ex- 
hausted every  possible  resource,  and  he  has  done  all  that  was  possible 
for  a  law-abiding  official  to  do.    Those  who  go  beyond  the  law  evi- 


CLAYTON    VS.    BRECKINRIDGE.  773 

dently  do  so  for  revenge  or  for  political  purposes,  and,  as  in  the  case 
of  Governor  Clayton's  administration,  they  are  compelled  to  have  a  spe- 
cial act  of  the  legislature  passed  afterwards  to  condone  their  own  law- 
lessness. If  such  men  as  Governor  Clayton  and  Mr.  W.  H.  H.  Clayton 
have  had  to  acknowledge  that  they  could  find  no  fault  with  the  gover- 
nor, as  they  do,  it  comes  with  poor  grace  for  the  committee  to  censure 
hin). 

The  sheriff  did  not  sufficiently  appreciate  the  case  at  first;  but  we 
think  he  did  his  full  duty  after  the  governor  saw  him  and  impressed 
the  case  upon  him.  He  should  have  broken  his  appointment  at  the 
remote  point  where  he  was  engaged  and  employed  at  the  time.  He 
should  have  immediately'  left  off  the  collection  of  taxes  and  hurried 
instantly  to  Plummerville.  His  deputy,  Ollie  Bentley,  who  was  ac- 
cused, and  whom  the  sheriff  at  one  time  suspected  of  killing  Colonel 
Clayton,  was  overwhelmingly  shown  to  be  innocent.  The  8heriff''8  con- 
duct towards  him  was  discreet.  It  met  the  aj)proval  of  the  governor ; 
and  all  the  stories  about  his  crying  in  talking  to  W.  H.  H.  Clayton,  and 
saying  that  the  sheiiff  "  was  engaged  in  more  important  business,"  and 
that  the  accidental  killing  of  his  brother  while  handling  a  hammerless 
pistol,  was  intentional,  we  believe  to  be  utterly  groundless. 

Mr.  Breckinridge  has  shown  not  only  the  utmost  zeal  in  supporting 
the  governor,  but  also  a  spirit  of  comradeship  in  doing  for  the  memory 
of  his  opponent,  who  was  also  his  personal  friend,  all  that  could  possi- 
bly be  expected  from  an  honorable  man.  His  entire  course  in  this  mat- 
ter has  been  both  in  spirit  and  in  fact  the  reverse  of  what  in  prejudice 
and  injustice  has  been  attributed  to  him.  After  the  Clayton  statement, 
assailing  him  so  pointedly,  and  the  people  of  his  district  so  bitterly,  he 
refused  to  enter  into  the  proffered  quarrel,  and  only  after  these  matters 
were  taken  up  officially,  nearly  a  year  afterwards,  did  he  begin  to  reply. 

Governor  Eagle,  having  no  money  to  employ  detectives,  could  only 
act  upon  such  clues  as  the  hope  of  the  rewards  or  other  causes  might 
bring  to  his  notice.  Say  in  March,  1889,  he  had  a  letter  implicating 
two  men — Hervey,  one  of  the  indicted  men,  and  a  man  named  Alnut,  a 
guard  on  a  convict  farm.  Mr.  Breckinridge  returned  home  from  Wash- 
ington about  that  time,  Congress  having  adjourned,  and  calling  at  once 
to  see  the  governor,  he  supplied  him  with  funds  to  follow  this  up.  The 
governor  did  so,  and  found  there  was  nothing  in  it.  Soon  afterwards 
Mr.  Breckinridge,  partly  of  his  own  means,  and  partly  with  that  of 
other  citizens  of  Pine  Bluff,  gave  the  governor  $500  additional  to  use 
at  his  discretion  for  detective  purposes. 

Before  going  away  for  the  summer,  lie  asked  the  governor  to  name 
any  amount  of  money  he  thought  he  might  need  and  he  would  see  that 
he  was  supi)lied.  This  i«  related  by  the  governor  (page  560  of  the  tes- 
timony, and  at  other  places,  and  the  Gazette),  then  under  the  manage- 
ment that  General  Clayton  approved  of  so  highly,  commended  all  this 
action  in  the  highest  terms,  but  from  the  report  of  the  majority  it 
would  not  be  supposed  that  it  was  even  taken. 

Without  following  minor  matters  we  will  relate  that  the  first  heard 
of  the  Hooper  theory  was  in  a  letter  to  Sheriff'  Shelby  from  Jared  Safer, 
of  Jeffersonville,  Ind.,  of  July  1,  1890  (testimony,  page  61S).  In  this 
he  simply  says  he  knows  a  man  who  said  in  November,  1888,  that  he 
was  going  to  kill  John  M.  Clayton,  and  that  he  believes  from  other  evi- 
dence he  either  did  or  had  it  done.  This  letter  left  so  vague  an  impres- 
sion upon  the  mind  of  the  governor,  Mr.  Breckinridge,  and  others,  that 
we  have  to  refer  to  the  letters  at  the  time  to  definitely  fix  it.  It  was 
one  of  the  batch  of  letters,  etc.,  that  the  sheriff,  through  Mr.  Armstrong, 


774  CLAYTON   VS.    BRECKINRIDGE. 

sent  Mr.  Breckinridge  to  read,  at  the  request  of  the  governor.  Mr. 
Breckinridge  writes  the  governor  his  views  about  them  July  9,  1889. 
The  only  reference  he  makes  to  the  Sater  or  Hooper  theory  is  this : 

Jared  Sater  should  be  asked  the  uame  of  his  man  and  witnesses.  (Testimony,  p. 
624.) 

No  more  is  heard  of  this  until  the  last  of  July,  when  the  governor 
wrote  Mr.  Breckinridge  the  following  letter,  relating  to  a  iuller  letter 
that  had  been  received  from  Sat^r. 

State  of  Arkansas,  Executive  Office, 

LitOti  Bock,  July  29,  1889. 
My  Dear  Sir:  I  inclose  herewith  copy  of  a  letter  received  by  M.  D.  Shelby,  the 
sherift'  of  Conway  County,  from  one  Jared  Sater,  of  Jeffersonville,  Ind.  I  am  in- 
clined to  think  that  tlie  contents  furnish  a  clue  which,  if  properly  lollowed  np,  will 
result  in  the  capture  of  the  murderer  of  Clayton.  The  sheriff  (Mr.  Shelby)  requested 
that  I  furnish  a  i)art  of  the  money  in  my  hands  to  be  used  in  sending  a  man  out  to 
California  to  investigate  the  matter.  I  declined  to  do  this  without  first  submitting 
the  letter  received  from  Sater  by  Shelby  to  you  and  having  your  views  as  to  the  pro- 
priety of  doing  so. 

You  will  see  from  the  correspondence  that  Mr.  Shelby  has  agreed  with  Sater  to  give 
him  half  of  the  reward  offered  for  the  arrest  and  conviction  of  Thomas  Hooper,  the 
supposed  assassin,  I  desire  your  opinion  as  to  whether  it  would  be  better  to  quietly 
work  up  the  matter  through  some  one  in  California  or  whether  it  would  be  better  to 
furnish  money  to  have  some  one  go  out  there  and  investigate. 
Awaiting  your  reply,  I  am,  dear  sir,  yours,  truly, 

James  P.  Eagle, 

Governor, 
By  C.  W.  Walker, 

Executive  Clerk. 
Hon.  C.  B.  Breckivridge, 

St.  Paul,  Minn., 

P.  S. — If  you  are  of  opinion  that  some  one  had  better  go,  how  would  it  do  to  have 
the  sheriff  of  Conway  County  go! 
Yours, 

J.  P.  E., 
By  C.  W.  W., 

Cleric. 
(Mr,  Breckinridge's  brief,  p.  18.) 

The  governor  is  "inclined  to  think"  that  this  "  will  result  in  the  cap- 
ture of  the  murderer  of  Clayton." 

This  was  not  viewed  so  hopefully  by  Mr.  Breckinridge  in  his  reply. 
The  governor  stated  that  he  did  not  furnish  that  letter  because  in  stating 
his  grounds  of  doubt  Mr.  Breckinridge  wrote  confidentially  his  opinion 
or  doubts  as  to  certain  individuals.  This  is  related  in  the  colloquy  on 
page  18  of  Mr.  Breckinridge's  brief;  will  be  found  in  Governor  Eagle's 
testimony,  and  is  familiar  to  all  the  committee.  Not  until  October  12, 
1889,  did  Mr.  Breckinridge  feel  any  confidence  in  this  clue.  The  gov- 
ernor had  written  him  on  the  4th  of  October,  as  follows: 

State  of  Arkansas,  Executive  Office, 

Little  Bock,  Octohtr  4,  1889. 
My  Dkar  Sir  :  I  herewith  inclose  to  you  papers,  with  stamps  and  indorsements  as 
yon  see  them.  I  telegraphed  you  on  the  30th  ultimo  that  I  would  send  the  papers, 
and  really  thought  I  had  done  so.  I  would  be  obliged  to  yon  for  your  views  at  length 
in  ref'iirdto  the  matter,  or,  if  yon  contemplate  returning  soon,  we  can  have  a  personal 
interview.  What  do  yon  think  of  the  propriety  of  putting  the  matter  in  the  hands 
of  a  Pinkerton  detective  t  One-half  of  the  reward  according  to  agreement  with  Mr. 
Shelby  goes  to  informer. 
Very  truly  yonrs, 

James  P.  Eagle, 

Governor. 
By  Walker, 

Executive  Clerk. 
Hon.  C.  R.  Breckixridge, 

Washington,  D.  C. 


CLAYTON  VS.    BRECKINRIDGE.  775 

To  this  Mr.  Breckinridge  replied  on  the  12th  as  follows: 

House  op  Repkksentatives  U.  S., 

Washington,  D.  C,  Oct.  12,  1889. 
Governor  James  P.  Eagle,  Little  Rock,  Ark. : 

My  Dear  Sir:  Your  favor  of  the  4th  inst.,  with  inclosure,  was  dnly  received.  lex- 
pect  Sheriff  Shelby  had  better  jjo  to  Calfornia.  He  will  doubtless  need  the  help  of  a 
shrewd  official  after  he  gets  there  to  collect  evidence.  I  take  it  that  his  departure 
should  be  secret,  for  rhert^  may  be  persoual  sympathizers  who  would  give  the  party 
notice  of  Shelby's  departure.  Tliis  might  lead  to  such  deportment  as  to  prevent  the 
getting  of  evidence  still  ueeded.  I  should  think  an  officer  or  a  detective  could  do  much 
more  in  California  with  Shelby  on  the  ground,  with  his  knowledge  of  Arkan.sas  de- 
tails and  associations,  than  could  otherwise  be  done.  The  letter  from  "Jack  the 
Ripper"  should  be  taken  along  and  compared  with  his  writing. 

I  have  inquired  of  Sater,  through  a  Mr.  Ingram,  of  the  Treasury  Department,  whose 
home  is  at  Jeffersonville.  Ingram  is  said  to  be  a  perfectly  responsible  man.  and  he 
says  Sater  and  his  family  are  people  of  veracity,  and  that  they  were  in  California  at 
the  time  they  speak  of.     I  did  not  reveal  the  nature  of  the  business  in  hand. 

I  shall  be  home  in  ten  days  or  two  weeks,  and  will  you  see  as  soon  as  I  arrive. 
This  trip  will  consume  largely  of  the  funds  you  have,  I  think  I  can  promptly  get 
more. 

This  clew  c»*rtainly  leads  to  what  appeared  to  me  to  be  an  extremely  improbable 
direction,  but  it  takes  on  very  deciiled  and  convincing  scope.     These  matters,  involv- 
ing the  lite  tirst  of  one  and  then  of  another,  are  very  sad. 
Sincerely,  yours, 

C.  R.  Breckinbridgk. 

(Record,  p.  624.) 

He  had  promised  in  his  letter  in  August,  from  St.  Paul,  to  make  in- 
quiries of  Indianians  at  Washington  about  Sater's  reliability,  and  this 
is  the  result  of  the  inquiries. 

On  the  23d  of  December,  1889,  the  governor  wrote  Mr.  Breckinridge 
as  follows: 

Little  Rock,  Decemher  23,  1889. 
Dear  Sir:  I  am  directed  by  Governor  Eagle  to  say,  in  reply  to  your  favor  of  19th 
inst.,  that  he  will  write  to  St.  Louis  parties  as  you  request.  The  governor  further 
directs  me  to  say  that  he  has  received  another  letter  fiom  the  sheriff  of  Los  Angeles 
County,  Cal.,  and  that  he  is  now  fully  impressed  with  the  belief  that  that  is  the 
right  clue.  The  family  of  that  California  party  has  recently  returned  to  t'ouway 
County,  but  report  the  man  (i.  e.,  supposed  assassin)  as  dead.  The  sheriff  of  Conway 
County  is  now  working  up  that  clue,  as  is  also  the  sheriff  of  Los  Angeles  County,  Cal., 
and  I  will  keep  you  advised  aa  to  developments. 
Very  truly, 

Jno.  C.  England, 

Private  Hecretary. 
Hon,  C.  R.  Breckinridge, 

Washington,  D.  C. 
(Mr.  Breckinridge's  brief,  p.  19.) 

The  governor  was  then  "fully  impressed  with  the  belief  that  that  is 
the  right  clue."  This  implied  disbelief  in  all  the  other  clues  which  had 
been  so  fully  and  so  exhaustively  explored. 

Then  on  Junuary  1,  1890,  the  governor  got  the  following  letter  from 
the  sheriff  of  Los  Angeles  County,  Cal. — the  law  officer  and  a  liepubli- 
can  : 

Los  Angeles,  Jan.  1, 1890. 
Hon.  J,  P.  Eagle,  Governor  State  of  Arkanscu: 

Dear  Sir  :  Yours  of  December  1(),  1H89,  duly  received ;  contents  noted.  Have  been 
unable  to  reply  ere  this,  owing  to  unusually  heavy  rains  and  washouts.  We  will,  h"W- 
ever,  now  give  you  a  complete  report  in  regaid  to  the  matter  of  Thomas  Hooper. 
Something  like  eight  or  nine  months  ago  one  Chas,  W.  Lewis  came  into  my  office  at 
night-time  and  gave  the  fidlowing  information  to  W.  A.  Haminel,  one  of  my  dejntties. 
That  some  time  in  latter  part  of  18b8  he  made  the  acquaintance  of  Thomas  Hooper 


776  CLAYTON   VS.   BRECKINRIDGE. 

nnder  the  following  circumstances:  Hooper  bad  been  pnt  out  of  the  house  in  which 
be  bad  been  living  for  non-payment  of  rent,  and  that  be  (Lewie)  took  bim  into  his 
own  house  and  cared  for  bim,  as  Hooper  was  quite  sick  at  the  time.  The  result  was 
that  Lewis  and  Hooper  became  quite  intimate,  and  Lewis,  observing  that  Hooper  was 
moody  and  aurly  at  times,  finally  asked  Hooper  what  was  the  matter,  when  Hooper 
made  the  following  statement :  That  in  1868  (supposed  to  be  the  same  year  in  which 
Hooper's  father  was  killed)  Hooper  intimated  that  be  had  killed  two  men,  whose 
names  Lewis  understood  to  be  Thomas  and  Mays  (first  names  unknown),  and  Lewis 
was  not  sure  of  these  names  being  right,  but  was  sure  of  the  circumstances.  The 
men  were  ambushed  in  a  corn-field  in  Conway  County,  Ark.  ;  that  these  two  men 
were  two  of  three  ringleaders  of  a  mob  that  bad  lynched  his  father,  and  that  the  third 
man  was  Senator  Clayton,  and  that  he  would  kill  him,  too  ;  that  he  could  not  rest  in 
his  grave  if  he  did  not  kill  him  ;  that,  in  fact,  it  was  bis  religion  to  revenge  the  death 
of  his  father ;  and  if  Lewis,  ever  heard  of  Clayton  dying  with  his  boots  on,  to  just  lay 
it  to  bim.  Lewis  further  stated  that  H.  disappeared  from  Los  Angeles  the  latter  part 
of  December,  1888,  or  the  1st  of  January,  1889  ;  and  when  he  heard  of  the  murder  of 
Senator  Clayton,  and  also  learning  ofH.'s  absence  from  home,  through  H.'s  own  son,  he 
finally  thought  it  his  duty  to  see  me.  I  at  once  wrote  to  the  authorities  proposed 
by  Lewis,  but  never  received  an  anywer,  one  letter  having  been  returned ;  and  until 
I  received  your  first  letter  bad  taken  no  active  steps  in  the  matter. 

I  then,  in  conjunction  with  H.  A.  Hammel  and  A.  W.  Marsh,  my  deputies,  and  both 
in  possession  of  these  facts,  we  finally  located  H.  at  Los  Netos  Township,  some  fifteen 
miles  from  here.  In  the  meantime  Lewis  left  here,  leaving  no  address,  but  we  have 
now  located  him  in  Minneapolis,  Minn.,  where  he  is  now,  or  was,  working  in  a 
laundry,  as  shirt  ironer.  We  bad  taken  steps  to  get  Lewis'  affidavit  of  these  facts, 
but  in  the  meantime  Hooper  died.  Of  this  fact  we  could  not  get  information,  for  the 
reason  that  it  has  been  raining  here  for  nearly  a  month,  and  he  died  just  when  the 
rain  commenced,  and  as  the  rauchito  where  he  lived  was  mostly  surrounded  by  water, 
we  made  no  attempt,  knowing  full  well  that  he  would  not  leave. 

After  Hooper  returned  here  be  purchased  a  ranch  reported  to  be  worth  $10,000,  al- 
though apparently  poor  a  year  before.  I  have  been  to  considerable  expense,  and 
have  made  a  thorough  examination  of  the  matter,  and  would  be  glad  to  hear  from 
you.  You  can  rely  on  the  foregoing  as  a  simple,  unvarnished  statement  of  the  facts 
in  this  case. 

Respectfully, 

M.  G.  Aguirre, 
Sheriff  of  Los  Angeles  County. 

Here  this  Republican  official  produces  a  witness,  presumably  respon- 
sible, who  confirms  all  that  Sater  had  said.  He  proves  from  Hooper's 
son  that  the  father  was  absent  at  the  time  of  the  killing,  and  no  men- 
tion was  made,  or  had  ever  been  made,  of  ill-health.  He  closes  by  say- 
ing :  "You  can  rely  on  the  foregoing  as  a  simple,  unvarnished  statement 
of  the  facts  in  this  case." 

Thus  everything  remained  with  only  confirmatory  details  until  the 
committee  went  to  Little  Rock.  The  evidence  there  was  almost  as  con- 
firmatory as  contradictory.  The  dispatch  received  by  the  reporter  of 
the  St.  Louis  Republic,  referred  to  on  page  7  of  the  majority  report, 
was  in  reply  to  one  sent  at  the  request  of  Mr.  Breckinridge,  who  used 
every  effort  to  exhaust  every  clue.  We  have  seen  how  the  committee 
refused  to  take  depositions  of  parties  in  California  to  settle  conflicting 
testimony  at  Little  Rock;  but  the  evidence  procured  lately  by  the 
governor,  page  28  of  Mr.  Breckinridge's  brief,  indicates  with  reasonable 
certainty  that  this  clue  also  is  false. 

A  perusal  of  only  the  parts  we  introduce,  all  being  of  the  same  tenor, 
shows  how  conclusive  the  truth  of  this  appeared  at  one  time.  If  what 
the  California  sheriff  said  first  and  last  was  true,  there  was,  under  the 
circumstances,  a  reasonable  certainty  of  its  truth;  but  it  is  evident 
that  he  is  not  reliable,  and  yet  that  is  the  last  thing  to  expect  from  the 
oflficial  chosen  by  the  people  to  deal  with  criminal  matters.  How  far  the 
governor  was  from  being  beguiled  into  this  is  very  apparent;  that 
Mr.  Breckinridge  was  the  last  and  the  most  reluctant  person  to  give 
credence  to  it  is  equally  clear. 

The  committee  complains  that  "no  one  was  sent  to  California  to  see 


CLAYTON   VS.    BRECKINRIDGE.  777 

whether  the  story  was  true  or  not,"  and  yet  the  matter  was  intrusted 
to  the  sheriff  of  their  own  political  faith. 

After  the  thousands  of  doUais  spent  by  the  Messrs.  Clayton  on  the 
ballot-box  theory,  after  the  sifting  of  everything  possible  through  the 
Federal  court  trials,  after  the  uudeviating  attention  of  the  governor  to 
only  this  theory  for  six  months,  after  the  open  rewards  of  about 
$11,000  for  a  year  or  more,  the  committee  still  say  there  has  not  been 
given  ''  due  weight  to  the  suspicion  that  should  naturally  attach  to  the 
ballot-box  thieves,"  and  (p.  5)  in  the  very  next  breath  complain  of  the 
governor  for  not  sending  a  man  to  California. 

They  take  credit  for  sending  for  Safer  (p.  3),  when  it  was  only  by  the 
most  persistent  eflbrts  of  Mr.  Breckinridge  that  they  consented  to  let 
him  come  to  Little  Rock,  he  or  his  friends  advancing  his  expenses. 
We  know  from  experience  that  if  he  had  been  deferred  to  be  examined 
at  Washington  he  would  never  have  been  examined  at  all. 

They  say  (p.  5)  "they  took  all  the  testimony  available,"  and  yet  they 
violated  their  agreement  to  take  testimony  in  many  and  most  import- 
ant instances. 

They  say  (p.  6)  "Mr.  Breckinridge  accepted  this  theory  as  one  which 
relieved  his  partisans  in  Arkansas  from  the  charge,"  in  the  face  of  the 
evidence  that  he  was  the  last  man  to  accept  it. 

They  say  (p.  7)  "the  theory  was  a  pleasing  one  to  contestee,  and  no 
one  would  blame  him  for  following  such  a  clue,"  not  only  in  the  face  of 
the  facts  we  have  given,  but  in  the  face  of  the  additional  fact  that  the 
conduct  they  impute  and  indorse  would  be  highly  dishonorable  in  Mr. 
Breckinridge. 

They  say  (p.  7)  <'no  reasonable  explanation  of  the  murder  of  Colonel 
Clayton  appears,  except  that  some  of  the  ballot-box  thieves,  finding  the 
taking  of  the  testimony  progressing,  killed  him,"  which  clearly  makes 
it  a  personal  crime  and  personal  to  those  men;  and  yet  they  argue  all 
through  that  it  was  not  of  this  nature,  but  to  affect  the  election  and  not 
to  prevent  their  own  punishment,  and  then  on  page  15  they  state  a 
wholly  different  theory,  as  settling  a  mere  personal  rivalry  and  dispute, 
such  as  men  have  settled  in  duels.    Their  language  is  as  follows: 

In  the  old  days  of  the  code  of  honor  political  antagonists  often  met  face  to  face  and 
eye  to  eye  and  sought  their  adversary's  life.  This  method  of  settling  political  differ- 
ences has  become  obsolete,  and  we  frequently  congratulate  ourselves  upon  the  im- 
proved moral  tone  of  our  day  and  generation. 

They  also  complain,  on  page  7,  that  "this  theory  would  only,  in  any 
event,  have  partly  solved  the  mystery,  for  there  were  at  least  two 
persons  present  at  the  murder."  The  logic  of  this  is  that  if  you  don't 
know  beforehand  all  there  is  in  a  clue  you  must  not  pursue  it,  and  if 
a  clue  promises  directly  only  to  disclose  the  principal  you  must  neglect 
it  because  it  does  not  immediately  discover  the  confederate. 

Thomas  Hooper  was  a  Democrat.  He  had  been  a  brave  soldier  all 
through  the  war,  in  Governor  Eagle's  regiment.  The  governor  knew 
him  well,  and  remembered  him  with  strong  personal  attachment.  The 
town  of  Morrilton,  the  county  of  Conway  and  adjoining  counties,  con- 
tained his  brothers,  nephews,  and  numerous  other  kinspeople.  They 
are  all  Democrats,  and  many  of  them  people  of  influence,  one  brother 
being,  or  has  been,  a  member  of  the  legislature.  Who  could  have  had 
more  personal  sympathy  than  this  family  ?  Who  more  dangerous  to 
arouse  in  that  community?  If  there  were  any  "Democratic"  secrets, 
who  would  be  more  likely  than  they  to  know  something  of  them  ?  The 
most  casual  reflection  will  convince  that  this  strong  and  numerous  con- 
nection could  not  be  put  to  the  distress  they  were  without  serious  peril 


778  CLAYTON  VS.   BRECKINRIDGE. 

to  any  guilty  people  there  who  had  secrets  to  keep.  It  put  tho  most 
powerful  internal  influences  at  work  to  split  the  local  Democracy  into 
angry  factions,  to  awaken  crimination  and  recrimination,  to  bring  out 
every  latent  suspicion,  to  bring  out  the  truth  if  anybody  there  knew 
it.  One  of  the  most  conclusiv^e  evidences  of  the  innocence  of  those 
people  of  all  knowledge  or  sympathy  with  this  event  is  the  failure  of 
this  fearful  ordeal  to  develop  a  single  fact.  This  makes  the  mystery  of 
the  killing  of  Clayton  all  the  more  strange,  it  is  evident  in  every  way 
that  this  clue  was  not  in  any  sense  a  pleasing  one,  or  one  calculated 
to  shield  any  guilty  man. 

Retereuce  to  the  acquittal  of  the  men  tried  before  th©  Federal  court 
for  conspiring  to  injure  Wahl,  and  to  their  testimony,  Page  —  et  seq., 
shows  clearly  that  no  conspiracy  existed  against  him,  nor  did  these  men 
try  to  harm  him.  He  was  one  of  the  foremost  men  in  getting  up  the 
game  of  cards,  he  was  foremost  in  the  drinking,  and  he  testifies  himself 
that  the  change  of  seats  was  made  at  his  own  request.  The  shot  passed 
socbseto  others  as  to  indicate  that  they  might  have  been  tired  at, 
wounding  the  town  marshal  in  the  neck  with  a  piece  of  glass,  and  it  is 
most  probable  that  the  disturbance  he  had  that  day  with  drunken  team- 
sters accounts  for  the  whole  matter.  One  or  more  of  them  had  threat- 
ened to  kill  him,  and  they  were  still  camjjing  near  by.  The  testimony 
is  frank  and  full,  and  it  is  evident  Wahl's  companions  were  as  much 
startled  and  alarmed  as  he.  As  to  the  statement  that  he,  only,  was  in- 
dicted for  playing  cards,  we  did  not  look  it  up ;  but  we  would  expect 
he  testimony  to  show  that  there  is  no  more  in  this  than  in  the  others 
features.  The  testimony  of  Captain  Stowers,  Dr.  Say  le,  and  others,  show 
conclusively  that  the  militia  talk  is  a  gross  exaggeration. 

THE  OUTRAaE  BEFORE   THE  SUBCOMMITTEE,  IN  THE  UNITED  STATES 
COURT- ROOM,  AT  LITTLE  ROCK,  ARK. 

A  very  significant  event  occurred  in  the  United  States  court-room,  at 
Little  Eock,  during  the  taking  of  testimony,  on  the  night  of  the  5th 
of  May,  1890.  Had  the  acts  of  Republicans  on  this  occasion  be«m  com- 
mitted by  Democrats  the  country  would  have  rung  with  statements 
and  charges,  and  we  think  the  event  would  have  occupied  a  most  con- 
spicnous  place  in  the  report  of  the  majority.  As  it  is,  the  matter  is 
briefly  and  obscurely  printed  in  the  testimony  and  no  mention  is  made 
of  it  in  the  report. 

The  various  charges  and  insinuations  of  every  conceivable  character 
that  had  been  made,  especially  against  citizens  of  Conway  County,  were 
calculated  to  be  very  irritating.  Mr.  Carroll  Armstrong,  of  tha  t  county, 
had  been  in  attendance  for  some  time.  He  is  a  small,  trail  man,  weigh- 
ing but  little,  if  any,  over  100  pounds,  and  of  nervous  temperament. 
Evidently  laboring  under  a  strong  sense  of  injustice  done  to  his  neigh- 
bors and  to  the  good  name  of  his  county,  he  for  the  first  time  indulged 
in  language  similar  to  that  which  had  been  used  towards  them  and  him, 
but  of  far  less  imj)ort  than  what  he  had  been  called  upon  to  endure. 
While  this  does  not  justify  an  expression  of  resentment,  especially  at 
that  time  and  idace,  still  less  is  an  assault  to  be  justified  at  the  same 
time  and  place  and  under  far  less  provoking  circumstances,  and  still  less 
if  by  one  most  experienced  in  the  i)roprieties  and  restraints  appropriate 
to  such  a  place  and  occasion.  The  latter  offender  was  Judge  John 
McClure,  a  large  and  powerful  man,  and  the  difference  in  their  physical 
strength  would  alone  suggest  forbearance. 

The  Record  is  as  follows: 

Mr.  Carroll  Armstrong  then  addressed  tbe  coiutuittee  as  follows: 

Mr.  Cbairmau :  There  have  been  some  foul  charges  made  against  tbe  people  of 


CLAYTON  VS.   BRECKINRIDGE.  779 

Morrillton  and  of  Conway  Connty  by  the  mouth-piece  of  Powell  Clayton.  1  desire  to 
enter  an  appearance  for  Conway  Connty. 

Mr.  Lacey  (to  the  stenographer).  Note  that  Mr.  Armstrong  desires  to  enter  au 
ai)pearance  for  Conway  County. 

Mr.  Armstrong.  I  understand  this  committee  intends  in  a  short  time  to  adjonrn, 
after  having  received  the  testimony  here  that  would  cast  a  cloud  upon  the  people  of 
Conway  County,  and  retire  to  the  city  of  Washington  for  the  purpose  of  making  their 
report. 

Here  he  was  interrupted  agaiu  by  Mr.  Lacey,  who  remarked  : 

Mr.  Lacey.  I  think  that  is  quite  probable. 

Mr.  Armstrong  was  evidently  stung  by  the  confirmation  of  his  worst 
fears  of  injustice  to  his  county  and  by  the  Interruptions,  manner^  and 
words  of  Mr.  Lacey.    He  continued  his  application  as  follows: 

Mr.  Armstrong.  I  insi-st  that  this  committee  shall  subpoena  witnesses  from  the 
people  of  Conway  County,  from  the  good  people  of  Conway  County,  to  refute  the 
charges  that  have  been  made  by  this  infamous  slanderer. 

At  this  instant  Judge  McOlure  rose  from  his  seat  and  aimed  a  pow- 
erful blow  at  Mr.  Armstrong's  face,  but  he  dodged  it  and  received  it 
only  partially  on  the  side  of  his  head.  Being  thus  assaulted  Mr.  Arm- 
strong, as  he  dodged  the  blow,  caught  with  his  left  hand  at  Judge  Mc- 
Clure's  beard,  which  is  full  and  long.  The  earnestness  and  honesty  of 
Mr.  Armstrong's  request  and  the  nature  of  the  interruptions  had  fast- 
ened the  attention  of  every  one. 

The  assault  by  Judge  McClure,  in  the  Federal  court-room,  in  the 
presence  of  a  Congressional  committee,  and  in  the  presence  of  a  num- 
ber of  ladies,  was  startling  to  all.  Messrs.  McCain  and  Harrod  quietly 
and  instantly  stepped  between  the  parties  before  McClure  could  follow 
up  his  blow.  Mr.  Armstrong  stood  where  McCain  and  Harrod  had 
pushed  bim,  and  a  deputy  United  States  marshal  quickly  drew  his  pis- 
tol and  he  held  it  on  a  level  with  about  the  middle  of  Mr.  Armstrong's 
back,  behind  whom  he  was  standing.  Mr.  Breckinridge,  who  had 
worked  himself  around  near  the  group,  while,  like  ourselves  (Wilson 
and  Maish),  calling  for  order,  ran  instantly  to  Mr.  Armstrong,  and  seiz- 
ing him,  pressed  him  back  and  down  into  a  chair.  Judge  McClure, 
Armstrong  being  removed,  and  adjured  and  confronted  by  McCain, 
Harrod,  and  one  or  two  others,  sat  down. 

In  the  St.  Louis  Globe  Democrat  of  May  13,  1890,  there  appeared 
the  following,  as  coming  from  Mr.  Lacey : 

If  Armstrong  had  drawn  his  pistol,  said  Mr.  Lacey,  he  would  undoubtedly  have 
been  shot  immediately  by  the  United  States  marshal,  who  stood  in  his  rear  prepared 
for  emergencies. 

This  is  the  Nagle  case  reversed.  The  Supreme  Court  held  that  when 
a  powerful  man  offered  to  strike  a  weak  man  (Judge  Terry  having  ap- 
proached Judge  Field  evidently  for  this  purpose,  in  a  dining-room),  the 
United  States  marshal  was  justified  in  killing  the  strong  man  in  defense 
of  the  weak  man.  Here  it  seems  the  marshal  was  also  stationed  upon 
the  lookout,  with  instructions.  The  strong  man  was  not  to  be  killed  in 
this  case  if  he  offered  to  strike  the  weak  one,  nor  even  if  he  struck  him, 
nor  did  there  seem  to  be  the  slightest  indication  of  instructions  to  arrest 
an  assailant,  and  thus  to  prevent  a  difficulty. 

We  did  not  see  the  slightest  indication,  nor  is  there  any  reason  to 
believe  that  a  single  Democrat  had  a  weapon  of  any  kind;  and  Mr. 
Armstrong  has  stated  personally  that  he  was  totally  unarmed.  But  it 
has  been  stated  and  not  denied,  so  tar  as  we  know,  that  Mr.  W.  H.  H. 
Clayton  threw  his  hand  to  his  hip  to  draw  his  pistol,  and  he  testifies 
on  page  448  that  General  Powell  Clayton  habitually  goes  armed. 

It  was  necessary  for  something  to  be  alleged  against  their  opponents 


780 


CLAYTON   VS.   BRECKINRIDGE. 


that  can  be  distorted ;  that  can  be  used  to  "  influence  the  elections  in  the 
Iforth;"  that  can  make  up  for  the  lack  of  evidence  to  declare  this  seat 
vacant;  that  can  be  used  to  obscure  and  overcome  the  fact  that  the  testi- 
mony positively  proves  that  Mr.  Breckinridge  was  elected.  Political 
capital  must  be  had  to  help  pass  a  force  bill.  But  the  obvious  plot  mis- 
carried, and  we  see  the  whole  matter  placed  with  studied  obscurity  in  the 
testimony,  not  indexed,  and  described  in  the  following  brief  and  color- 
less words : 

(At  this  point  in  Mr.  Annstrong'n  address  a  personal  diflBculty  occurred  between 
Mr.  Anustrong  and  Judge  McClure,  occasioning  considerable  excitement  for  few 
minntes.) 

This  indicates  the  character  of  this  whole  contest,  investigation,  and 
proceeding;  and  we  ask  the  House  to  weigh  well  all  the  facts  we  cite 
before  it  indorses  the  actions,  assertions,  and  recommendations  of  the 
majority  of  the  subcommittee  or  of  the  full  committee. 

THE  RESULT  OF  THE  ELECTION. 

The  minority  do  not  find  or  believe  that  the  election  was  affected  in 
the  least,  or  was  intended  to  be  affected,  by  but  one  event,  and  that  was 
the  theft,  by  unknown  parties,  of  the  Plummerville  ballot-box.  The 
count  of  this  vote,  however,  upon  the  accepted  proof  of  the  majority 
of  the  committee,  leav^es  Mr.  Breckinridge  a  majority  in  the  district  of 
413  votes,  and  this  is  his  rightful  majority.  But  to  show  that  Mr. 
Breckinridge  was  elected  upon  every  possible  theory  of  the  case,  we 
give  the  following  table : 


Breckin- 
ridge. 


Clayton. 


Total  vote  returned  for  Breckinridge. 

Total  vote  returned  for  Clayton 

Deduct  the  leaser  from  the  greater . . . 


Majority  for  Breckinridge. 


Clayton's  vote  proved  at  Plummerville 

Breckinridge's  vote  proved  at  Plummerville. 
Deduct  the  lesser  from  the  greater 


Clayton's  majority  at  Plummerville 


Breckinridge's  majority  brought  down 
Deduct  the  lesser  from  the  greater 


Breckinridge's  true  majority  in  the  district 

Town  of  Augusta,  Woodruff  County,  8  negroes  who  voted  for  Breckinridge  testi- 
fied they  did  not  intend  to  so  vote.    Multiply  by  2  and  deduct 


Leaving  majority  for  Breckinridge 

Eiverside  precinct,  Woodruff  County,  22  negroes  testified  as  above ;  but  the  ma- 
jority say  29.    Multiply  the  latter  by  2  and  deduct 


Leaving  majority  for  Breckinridge 

Cotton  Plant,  Woodruff  County,  48  negroes  testified  as  above.    Multiply  by  2  and 
deduct 


Leaving  majority  for  Breckinridge 

White  River,  21  negroes  testify  as  above,  but  the  majority  say  62. 
latter  by  2  and  deduct .' 


Multiply  the 


Leaving  m^ority  for  Breckinridge 

They  claim  29  negroes  at  Cotton  Plant  who  did  not  vote  (we  make  it  23)  and  are 
not  recorded  either  way,  but  now  come  and  say  they  did  vote.    Deduct  this  — 

Majority  left  for  Breckinridge 

Thiiteen  other  negroes  are  brought  up  from  the  otherprecincts  and  made  to  swear 
they  voted .    Deduct 


Majority  left  for  Breckinridge 

According  to  the  figures  as  computed  by  McCain  &  Harrod,  attorneys  at  Little 
Rock,  for  Mr.  Breckinridge,  the  above  final  result,  coirectlj'  computed  from 
the  testimony,  exclasive  of  the  negroes  not  voting  at  all,  makes  the  majority 
for  Breckinridge 


17,857 
17,011' 


125 


646 
433 


413 
16 


397 
58 


339 
96 


243 
124 


119 
29 


77 


17,011 


558 
'i25 


433 


CLAYTON   VS.    BRECKINRIDGE.  781 

They  make  the  nnmber  of  those  voters  23,  instead  of  29  and  13=52,  as 
above.  But  this  is  immaterial  as  the  highest  and  all  the  estimates  of  the 
committee  are  included  above. 

This  includes  every  vote  counted  or  claimed  in  any  and  every  way  by 
the  majority.  The  result  is  that  instead  of  showing  that  Mr.  Breckin- 
ridge was  not  elected,  the  testimony  shows  most  positively  that  he  was 
elected. 

The  only  way  in  which  this  can  be  overcome  is  by  casting  out  Demo- 
cratic votes  which  are  conceded  by  the  notice  of  contest  to  be  fair. 
Or,  if  the  committee  is  conducting  an  "  investigation,"  then  this  is  not 
to  be  treated  as  a  contest,  but  as  an  inquiry ;  not  as  a  statutory  case, 
but  as  an  investigation  under  a  special  resolution.  Under  this  theory 
no  evidence  should  be  acceptable  to  the  committee  or  the  House  except 
that  which  is  procured  by  the  same  mode  upon  the  one  side  as  upon 
the  other.  To  poll  the  vote  upon  one  side  and  Tiot  to  poll  it  upon  the 
other  is  manifestly  unfair, 

The  sub-committee  was  acting  independently,  for  the  House.  The 
lawyers  who  appeared  were  employed  and  acting  solely  as  the  repre- 
sentatives and  in  the  interest  of  other  parties  than  the  House.  The 
policy  of  the  committee  seems  to  have  been  to  follow  the  theory  of  the 
one  side,  and  to  exclude  the  testimony  of  the  other  side.  But  we  are 
disposed  to  believe  the  refusal  to  poll  the  vote  for  Mr.  Breckinridge 
at  the  Woodruff  County  precincts  was  caused  by  the  astonishing  result 
of  the  Plummerville  vote  when  polled. 

It  was  alleged  in  the  notice  of  contest  that  he  had  only  75  votes  there. 
The  vote  was  polled  and  the  committee  concedes  that  he  had  125  votes 
there,  or  more  than  66  per  cent,  in  excess  of  what  the  subcommittee  ex- 
pected. If  this  extended  to  the  Woodruff  County  boxes,  the  result 
would  be  far  more  disastrous  to  Republican  expectations  or  wishes  than 
the  present  demonstrated  majority  for  Breckinridge  shows. 

Believing  from  the  testimony  as  developed  in  this  case,  that  Mr. 
Breckinridge  was  fairly  and  honestly  elected,  we  recommend  the  adop- 
tion of  the  following  resolution  : 

'•^Resolved,  That  Clifton  R.  Breckinridge  was  elected  to  the  seat 
which  he  now  holds  as  Representative  in  Congress  from  the  Second 
Congressional  district  of  the  State  of  Arkansas,  and  he  is  entitled  to 
the  same." 

Levi  Maish. 
R.  P.  C.  Wilson. 
Ohas.  F.  Ceisp. 
Ohas.  T.  O'Feerall. 
j.  h.  outhwaitb. 
L.  W.  Moore. 


HENRY  KERNAGHAN  vs.  CHARLES  E.  HOOKER. 

SETENTH  MISSISSIPPI. 


Contestant  charged  partisan  and  illegal  appointment  of  election 
officers,  fraudulent  registration,  false  counting,  ballot-box-stuflfing,  in- 
terference with  United  States  supervisors,  violence,  and  intimidation. 
The  committee  find  tbat  all  these  practices  were  resorted  to  and  that  a 
considerable  portion  of  contestee's  majority  is  due  to  them ;  but,  the  evi- 
dence failing  to  show  that  the  frauds  affected  enough  votes  to  over- 
come the  entire  majority  returned  for  contestee,  he  is  still  entitled  to 
the  seat. 

There  is  no  minority  report. 

The  case  was  not  reached  in  the  House. 

783 


REPOUT 


Februaey  25, 1891. — Mr.  Rowell,  from  the  Committee  on  Elections, 
submitted  the  following  report: 

At  the  election  held  in  the  Seventh  Congressional  district  of  Missis- 
sippi on  November  6,  1888,  Henry  Kernaghan  and  Charles  E.  Hooker 
were  the  Eepublican  and  Democratic  candidates,  respectively,  for  the 
oflSce  ot  Representative  in  Congress.  According  to  the  declared  result 
ot  the  election,  Hooker  received  8,491  majority. 

In  due  time,  and  in  accordance  with  law,  Kernaghan  filed  his  notice 
of  contest,  alleging,  in  substance,  that  the  commissioners  of  election 
in  the  several  counties  of  the  district  were  not  appointed,  as  provided 
by  law,  by  the  governor,  lieutenant-governor,  and  secretary  of  state, 
but  were  in  fact  appointed  by  one  D.  P.  Porter,  deputy  secretary  of 
state  and  chairman  of  the  Democratic  executive  committee  of  the 
Seventh  Congressional  district;  that  in  making  such  appointments  the 
recommendations  of  the  Republican  executive  committees  were  ignored 
and  boards  were  appointed  either  composed  entirely  of  Democrats  or 
with  a  Republican  minority  member  who  could  be  controlled  by  his  Dem- 
ocratic associates;  that  in  appointing  precinct  judges  the  county  com- 
missioners of  election,  in  violation  of  law,  either  appointed  boards  com- 
posed entirely  of  Democrats  or  with  one  illiterate  Republican  j  that  in 
holding  the  election  fraudulent  registrations  were  made,  false  counting 
resorted  to,  ballot  boxes  stuffed,  United  States  supervisors  prevented 
from  discharging  their  duty,  violence  and  intimidation  resorted  to  to 
keep  voters  from  the  polls,  and  that  other  like  frauds  were  prevalent, 
with  the  result  of  changing  a  majority  for  contestant  into  a  minority. 

Answer  was  duly  filed  by  Hooker  denying  the  charges,  and  testimony 
was  taken  by  both  parties  upon  the  issues  joined. 

While  the  committee  have  reached  the  conclusion  that  upon  consid- 
eration of  the  whole  evidence,  and  restating  the  result  so  far  as  the  evi- 
dence enables  us  to  do  so,  contestee  has  remaining  a  majority  of  the 
votes  cast,  yet  the  facts  developed  in  the  evidence  are  such  as  to  require 
more  than  a  formal  report.  The  Seventh  Congressional  district  of  Mis- 
sissippi is  composed  of  the  counties  of  Claiborne,  Copiah,  Franklin, 
Hinds,  Jeflerson,  Lincoln,  Madison,  Rankin,  and  Simpson.  According 
to  the  census  of  1880  it  appears  that  the  population  of  the  district  was 
179,484,  of  which  115,823  were  colored  and  63,632  were  white,  and  that 
the  adult  males  were  36,327 ;  the  color«d  majority  being  from  10,000 
to  12,000,  or  not  quite  2  to  1.  785 

H.  Mis.  137 50 


786 


KERNAGHAN   VS.    HOOKER. 


At  the  election  of  1872,  prior  to  tbe  historic  "revolution,"  in  which 
was  inaugurated  what  is  known  as  the  "shotgun  policy"  of  carrying 
elections,  the  vote  in  this  district  for  secretary  of  state  was  as  follows : 


Coon  ties. 

Repub- 
lican. 

Demo- 
cratic. 

Total. 

2,238 
1,811 

440 
4,011 
1,098 

824 
2,601 
1,058 

307 

486 
1,900 
530 
354 
454 
640 
48 
1,123 
508 

2,724 

3,711 
970 

Hiuds                ..        - 

4,365 

2,152 

1,464 

2,649 

2,181 

815 

14,988 

6,043 

21, 031 

It  is  the  concurrent  testimony  in  this  record  and  in  other  Mississippi 
records  examiuedby  the  committee  that  the  great  mass  of  colored  vot- 
ers are  Republicans  aod  vote  the  Republicau  ticket  when  they  vote  at 
all.  There  are  in  this  district  a  good  many  white  Republicans,  espe- 
cially in  the  city  of  Jack.son,  the  capital  of  the  State.  Upon  that  ques- 
tion the  Ledger,  a  Democratic  paper  published  at  Tupelo,  in  this  dis- 
trict, in  its  issue  of  November  15,  editorially  says : 

Their  old  and  flimsy  pretext  heretofore  for  being  Republicans — that  they  were  fear- 
ful that  they  would  be  put  back  into  slavery — was  completely  exploded  by  the  present 
Democratic  administration,  which  has  been  more  friendly  to  the  negroes'  interest 
than  the  Republicans  ever  were.  But  with  all  this,  the  negroes  in  this  State  turned 
a  deaf  ear  to  tht-ir  best  interests  and  voted  for  Harrison  for  President,  for  the  sole 
and  express  purpose  of  being  in  opposition  to  the  white  people  of  the  south.  *  »  * 
There  are  a  few  good  and  true  negro  Democrats  in  Mississippi,  but  a  large  majority 
of  them  are  insolent,  turbulent  Republicans. 

The  whole  article  is  printed  in  the  Record,  pp.  529,  530. 
Judge  Lee  says : 

My  opinion  is  that  the  negroes,  if  free  to  vote,  would  vote  for  a  Republican  against 
any  Democrat,  although  there  are  a  small  number  of  them,  comparatively,  who  vote 
the  Democratic  ticket.     (Record,  page  370.) 

He  also  says : 

That  there  are  a  considerable  number  of  white  Republicans  in  the  district,  and  that 
the  negro  voters  largely  outnumber  the  white. 

In  the  light  of  recent  events  it  will  hardly  be  claimed  anywhere  that 
any  considerable  number  of  negroes  in  the  Seventh  district  of  Missis- 
sippi, or,  indeed,  anywhere  in  that  State,  willingly  vote  the  Democratic 
ticket.  It  does  not  follow,  however,  that  because  they  are  in  a  majority 
in  the  Seventh  district,  therefore  the  result  of  any  election  must  neces- 
sarily be  a  victory  for  the  Republicans.  If,  from  lack  of  organizatiou, 
failure  to  register,  or  indijfference  as  to  results,  they  fail  to  vote,  while 
their  opponents  do  not  neglect  this  political  duty,  the  result  will  neces- 
sarily be  defeat.  It  is  claimed  by  coutestee  in  this  case  that  these  were 
among  the  causes  of  the  Republican  defeat. 

The  record  discloses  that  to  some  extent  the  Republicans  of  the  Seventh 
district  were  indifferent,  that  they  lacked  organization,  and  that  many 
of  them  neglected  to  see  to  it  tlmt  they  were  properly  registered.  It  is 
claimed  that  this  indifference  resulted  in  part  from  a  belief,  based  on 
past  experience,  that  their  votes  would  not  be  counted  even  if  they  did 
vote. 


KERNAGHAN   VS.    IIOOKEE. 


787 


Charles  W.  Carraway,  a  leading  planter  and  a  friend  of  contestee, 
testified  as  follows  (Record,  pp.  495-497): 

Int.  8.  When  fair  elections  are  held  at  Dry  Grove,  what  is  the  usaal  Democratic 
and  Republican  vote  at  that  poll  ? 

(Objected  to  as  incompetent  and  irrelevant,  for  the  reason  that  the  answer  is  made 
to  depend  upon  the  witness's  opinion  of  what  is  a  fair  election,  and  because  a  state- 
ment of  fact  of  which  better  evidence  exists.) 

A.  Can  not  recall  but  one  fair  election  since  I  have  been  a  voter,  and  can  only 
judge  from  the  registration  hooka,  knowing  the  politics  of  most  of  the  people.  As 
fair  elections  have  so  seldom  been  had  there,  no  one  could  tell  what  the  vote  would 
be,  the  majority  hnowiug  it  would  he  useless  to  go  and  vote. 

(Objected  to  as  incompetent  and  irrtlevent,  because,  after  saying  that  he  does  not 
know,  the  witness  proceeds  to  give  his  opinion  of  the  politics  of  and  alleged  majority 
that  he  says  does  not  vote,  and  because  of  reference  to  the  registration  books,  of 
which  neither  the  original  nor  copies  are  produced.) 

Int.  9.  Why  do  they  know  it  to  be  useless  to  vote  there  ? 

A.  Because  the  vote  is  never  counted  as  cast. 

(Objected  to  as  incompetent  and  irrelevent,  stating  the  mere  opinion  of  the  wit- 
ness.) 

Int.  10.  What  is  the  number  of  Republican  voters  in  that  precinct? 

(Objected  to  as  incompetent  and  irrelevant,  stating  the  mere  opinion  of  the  wit- 
ness. ) 

A.  Never  counted  them  and  could  not  guess  within  a  hundred,  some  having  left 
the  county  who  have  since  returned,  and  a  good  many  names  having  been  erased 
from  the  poll-books  for  that  reason,  I  suppose,  but  I  believe  there  are  over  nine  hun- 
dred registered  voters  on  the  books  now,  and,  if  they  are  correct,  ninety  per  cent,  are  lie- 
publicans. 

#*•>  *  •«■» 

X-int.  11.  Why  did  they  not  provide  a  substitute  for  the  box,  as  allowed  by  law, 
and  vote? 

A.  It  would  have  done  no  good ;  the  Democrats  would  have  counted  it  to  suit  themselves, 
or  the  mules  would  have  eaten  the  box  the  following  night. 

(Objected  to  as  not  responsive  to  the  interrogatory.) 

X  int.  12.  Do  you  know  of  any  other  reason  1 

A.  There  are  few  white  Republicans  there,  and  unless  while  men  took  hold  on  both 
sides,  the  negroes  knotv  it  is  of  no  use,  I  would  have  insisted  on  voting,  but  I  believe 
the  people  would  have  objected  and  caused  some  trouble.  I  was  in  no  way  interested, 
only  to  pacify  the  negroes  and  keep  them  from  leaving,  not  knowing  the  Republican 
candidate,  and  Col.  Hooker  being  a  personal  friend,  and  whom  I  have  always  supported 
for  Congress,  regarding  him  as  the  only  Democrat  from  the  State  that  ever  did  us  any  good 
at  Washington.     I  mean  in  recent  years. 

Judge  Lea,  who  was  called  on  behalf  of  contestee,  in  response  to  a 
question  asked  by  contestee's  counsel,  said  (Record,  p.  370): 

A.  Such  is  the  belief  of  a  number  of  the  more  intelligent  Republicans  of  the  State. 
The  evils  which  have  resulted  from  what  is  commonly  called  negro  rule,  which  have 
existed  in  the  past,  is  the  reason  assigned  by  the  Democrats  in  the  State  as  justifying  the 
lawless  measures  which  have  been  resorted  to  for  the  purpose  of  preventing  negro  domina- 
tion; to  which,  1  will  add,  1  am  as  much  opposed  as  anybody. 

The  result  of  the  election  as  declared,  together  with  the  adult  white 
and  colored  males  in  the  district,  is  shown  in  the  following  table : 


Connties. 


Adnlt 
white 
males. 


Adult 
colored 
males. 


Votes 
returned 
for  Ker- 
naghau. 


"Votes 
returned 

for 
Hooker. 


Claiborne. 
Copiah  ... 
Franklin  . 

Hinds 

Jeflerson  . 
Lincoln... 
Madison.. 
Kaukin  ... 
Simpson .. 


Total. 


Hooker's  majority. 


799 
2,580 

9U0 
2.593 

837 
1,501 
1,2U 
l,3;i9 

947 


12,713 


2,620 

2,842 
901 
7,166 
2,559 
1,139 
4,  030 
1,778 
571 


23,612 


13 
458 
203 
945 
.363 
211 
343 
509 
193 


3,238 


2,269 
77» 

2,215 
C81 
851 

2,031 

1,543 
755 


11, 729 
3,238 


8,491 


788  KERNAGHAN   VS.    HOOKER. 

The  total  vote  for  Congressman  is  seen  to  be  less  than  16,000.  If 
this  announced  result  is  a  correct  exhibit  of  the  vote  as  cast,  and  con- 
testee  was  supported  only  by  the  whites,  he  received  within  1,000  of 
the  total  white  voting  strength  of  the  district,  while  20,000  negroes 
failed  to  vote,  counting  the  population  as  in  1880. 

But  this  return  does  not  show  the  true  result  of  the  election.  The 
commissioner  of  election  in  many  of  the  counties  of  the  district  did  not 
have  the  confidence  of  the  Kepublicans.  When  there  was  a  Republi- 
can representative  on  the  board  he  was  not  the  man  of  their  choice, 
was  not  trusted  by  the  party,  and  in  some  instances  was  not  regarded 
as  a  Kepublican.    It  should  be  borne  in  mind  that — 

The  election  commissioners  liold  in  their  hands  the  entire  election  machinery  of  their 
coonties;  they  establish  and  abolish 'election  precincts  at  will;  they  revise  the  regis- 
tration and  poll  books,  erasing  names  therefrom  as  occasion  demands ;  they  sit  as  a 
court  to  decide  appeals  from  the  circuit  clerk  when  complaint  is  made  that  registra- 
tion is  improperly  refused ;  they  appoint  all  election  officers  in  their  counties,  including 
peace  officers  to  preserve  order  at  the  voting  places ;  they  receive,  compute,  and  return 
the  whole  vote  of  their  counties;  and  to  exercise  these  great  powers  and  delicate  trusts 
the  concurrence  of  only  two  of  the  three  commissioni'rs  is  required.  (Buchanan  vs. 
Manning,  Digest  Election  Cases,  1882-'8:5,  p.  307.) 

In  the  appointment  of  precinct  inspectors  of  election  these  commis- 
sioners in  the  main  disregarded  the  law,  and  either  appointed  boards 
composed  entirely  of  Democrats,  or,  in  apparent  compliance  with  the 
statute,  appointed  one  illiterate  Republican  who  was  incompetent  to 
discharge  the  duties  of  the  oflBce.  It  is  impossible  to  resist  the  con- 
clusion that  these  illegal  appointments  were  not  made  in  the  interest  of 
an  honest  election.  It  was  said  in  the  case  of  Buchanan  vs.  Manning, 
above  cited : 

The  appointment  of  the  managers  of  the  election,  in  fairness  and  common  decency, 
should  be  made  from  opposite  political  parties.  A  refusal  to  do  so,  in  the  face  of  a 
statute  directing  it  to  be  done,  may  in  some  cases  be  evidence  of  fraud,  and  it  might 
form  an  important  link  in  a  chain  of  circumstances  tending  to  establish  a  conspiracy. 

As  showing  the  unlawful  methods  resorted  to  to  diminish  the  Repub- 
lican vote,  we  quote  the  following  from  the  record. 
W.  H.  Gibbs  (Rec,  p.  525)  testifies  as  follows  : 

The  meeting  (held  at  Brandon,  the  home  of  the  contestant,  the  day  before  elec- 
tion) was  addressed  by  ex-Chief  Justice  H.  F.  Simrall.  Mr.  Kernaghan  was  present 
and  presided.  He  introduced  Judge  Simrall.  The  speaker  was  interrupted  in  the 
progress  of  his  speech  by  a  young  lawyer  commonly  known  as  "Coote"  Wbite,  who 
said  that  as  Judge  Simrall  had  asked  the  question,  "How  long  these  ballot-box  out- 
rages and  intimidations  were  to  continue  in  this  country  !"  he  wanted  to  answer  his 
question  by  saying  that  they  would  last  just  so  long  as  such  men  as  Judge  Simrall 
went  around  organizing  the  negroes  and  urging  them  to  vote  against  the  white  peo- 
ple of  the  country.  That  is  about  the  substance  of  what  he  said,  if  not  the  exact 
language.  Judge  Simrall  replied  that  he  was  not  arraying  the  negroes  against  the 
whites  or  seeking  to  do  so.  He  proceeded  then  to  iinish  his  speech,  and  had  about  con- 
cluded when  he  was  again  interrupted  by  another  gentlemau,  Mr.  Pat  Henry,  another 
lawyer,  who  asked  Judge  Simrall  some  question,  which  I  don't  now  recollect,  to 
which  Judge  Simrall  replied  very  courteously,  as  I  thought,  but  which  Mr.  Henry 
said  was  not  an  answer  to  the  question  he  had  asked,  and  then  said  that  "  we  don't 
propose  that  this  crowd  shall  leave  this  house  till  they  have  heard  our  side  of  the 
question.  Upon  this  a  crowd  in  the  northeast  corner  of  the  court-house,  probably 
fifteen  or  twenty,  commenced  to  get  upon  the  desk  and  shout,  "  Close  the  doors!" 
Several  pistols  were  drawn,  and  "Coote"  White  presented  a  pistol  at  Mr.  Kerna- 
ghan. Some  of  the  crowd  attempted  to  leave  the  building,  but  were  prevented  by 
the  doors  being  closed  and  guards  placed  there  to  keep  them  in.  "Coote"  White 
then  went  up  into  the  stand  and  commenced  to  try  to  make  a  speech.  The  noise  and 
confusion  was  so  great  that  he  couldn't  be  heard  until  the  sheriff  was  sent  for,  who 
came  up,  and  after  some  time  succeeded  in  restoring  order.  White  then  proceeded 
with  his  speech,  in  which  he  said  that  they  had  carried  the  elections  by  force  in  times 
past  and  they  would  do  it  again  this  time.  The  balance  of  his  speech  didn't  amount 
to  very  much.  He  only  spoke  a  few  minutes.  The  doors  were  then  opened  aud  the 
crowd  allowed  to  depart. 


Kernaghan  vs.  nooKiJR.  789 

This  testimony  is  corroborated  by  other  witnesses;  and  "Coote" 
White,  who  was  one  of  contestee's  attorneys  in  taking  testimony,  was 
not  put  on  the  stand. 

E.  H.  Truly,  a  lawyer  and  independent  Democrat,  testifies  as  follows : 
(Red.  p.  480.) 

Int.  1.  State  your  name,  age,  residence,  and  occupation. — Ans.  K.  H.  Truly;  55 
years;  Fayette,  Jefterson  Co.,  Miss.;  lawyer. 

Int.  2.  If  you  were  present  at  Fayette  on  the  Tuesday  preceding  the  Congressional 
election  of  18i8,  state  what  you  may  know  of  any  arrangement  for  a  Republican 
meeting  there  on  that  day,  and  of  any  interference  with  any  Republicans  ;  state 
fully  all  you  know  of  what  happened  there  that  day. — Ans.  Yes,  I  was  present;  Mr. 
Kernaghan  had  given  notice  through  the  public  prints  and  through  posters  that  h© 
would  address  the  citizens  of  Jefferson  County  on  that  day  at  Fayette  ;  Mr.  Kerna- 
ghan came  to  town  in  a  buggy  with  a  colored  man  named  Jones,  from  Claiborne 
County,  I  believe ;  four  or  five  gentlemen,  Democrats,  waited  on  Jones  and  told  him 
if  he  had  any  business  of  more  importance  anywhere  else  than  there,  that  he  had 
better  get  away ;  I  went  to  those  gentlemen,  all  being  friends  of  mine,  and  asked 
them  what  they  meant ;  they  told  me  at  first  that  Jones  was  there  with  the  Republi- 
can tickets,  to  distribute  it,  and  that  they  wanted  him  to  leave;  I  told  them  that 
that  was  all  foolishness;  that  there  were  hundreds  of  negroes  there  who  could  dis- 
tribute their  tickets  as  well  as  Jones,  and  that  their  actions  were  liable  to  injure 
Col.  Hooker's  cause ;  they  then  said  that  he  was  a  rascal  and  a  very  disreputable 
character;  I  asked  them  if  they  knew  him,  and  they  said  no,  but  that  Mr.  Spencer 
had  told  them  so. 

(The  foregoing  answer  objected  to  as  incompetent  and  irrelevant,  constituting  no 
evidence  petLinent  to  the  issue  involved  in  this  contest  and  in  no  wise  showing  that 
any  fraud  or  intimidation  occurred  at  the  election  in  question.) 

Inter.  2.  State  what  you  may  know  on  information  as  to  what  the  said  Jones  did 
after  having  been  so  notitiod: 

(Objected  to  as  irrelevant  to  the  issue  involved,  and  because  the  question  calls  for 
hearsay. ) 

Ans.  I  was  told  that  Jones  became  very  much  frightened  and  immediately  went  to 
the  depot  to  take  the  train  to  leave;  there  being  no  train,  he  walked  out  to  Harris- 
ton,  and  that  he  burned  the  Republican  tickets  he  had  in  his  possession. 

(Answer  objected  to  as  mere  hearsay.) 

Int.  3.  If  you  were  present  at  Fayette  on  election  day,  November  6,  18H8,  state 
whether  or  no  there  were  any  colored  voters  in  attendance  there;  and  if  so,  how 
many,  and  whether  they  voted  or  not;  and  if  not,  why  not. 

(Objected  to  as  incompetent  and  irrelevant,  as  in  no  wise  aflfecting  the  issue  in- 
volved in  this  contets.) 

Ans.  I  was  present  on  that  day :  there  was  a  considerable  number  of  colored  voters 
in  attendance  ;  I  presume  about  :?00,  possibly  more  ;  out  of  that  number  there  were, 
I  think,  three  that  voted  the  Democratic  ticket;  none  of  the  others  voted;  there 
were  no  Republican  tickets  at  that  box  is  the  reason,  I  presume,  why  they  all  didn't 
vote. 

(Answer  objected  to  as  stating  mere  conclusion  of  the  witness  as  to  why  the  per- 
sons mentioned  did  not  vote.) 

Int.  4.  Were  the  said  voters  who  did  not  vote  on  said  day  solicited  to  vote  the 
Democratic  ticket;  and  if  so,  with  what  success, 

(Objected  to  as  incompetent,  because  the  solicitation  of  votes  is  incidental  to  all 
elections,  and  the  result  of  such  solicitation  upon  those  not  voting  being  in  no  wise 
prejudicial  to  the  result  attained  by  those  who  do  vote.) 

Ans.  Yes ;  there  was  a  great  deal  of  electioneering  with  the  colored  voters  by  the 
Democrats,  and  three  of  them  voted  the  Democratic  ticket. 

Int.  5.  To  what  political  party  do  you  belong? — Ans.  I  have  always  voted  the 
Democratic  ticket,  but  have  been  very  independent  in  ray  views,  and  when  the  Dem- 
ocratic party's  nominee  didn't  suit  my  views  I  didn't  vote  for  either  side;  I  have  always 
voted  for  Col.  Hooker,  and  warmly  supported  him,  both  against  Maj.  Barksdale  and 
Mr.  Kernaghan. 

The  testimony  of'Mr.  Truly  not  only  shows  that  the  Republicans  in 
Jefferson  County  did  not  have  an  opportunity  to  vote,  because  tickets 
were  not  distributed  there,  but  it  shows  the  Republicanism  of  the 
colored  voters;  that  out  of  300  present  at  Fayette,  only  3  could  be  per' 
suaded  to  vote  the  Democratic  ticket,  and  the  remainder  refused  to 
vote  because  there  were  no  Republican  tickets. 


790  KERNAGHAN    VS.    HOOKER. 

We  also  quote  the  testimony  of  E.  W.  Joues  (Record,  page  477). 

Interrogatory  1.  State  your  uarae,  age,  resideuce,  and  occupation. — Answer.  E.  W, 
Jones;  40  years;  Jackson,  Miss.;  I  nave  farming  interests  in  Claiborne  County. 

Iut».  2.  How  long  have  you  resided  at  Jackson,  Miss.,  and  wliere  was  your  residence 
before  yon  came  to  Jackson  T— Ans.  I  have  resided  in  Jackson  about  10  or  12  months ; 
I  formerly  lived  at  Port  Gibson,  Miss. ;  was  born  and  raised  there. 

Int.  3.  If  you  were  present  at  the  town  of  Fayette,  Miss.,  a  few  days  previous  to 
the  election  of  1888,  state  with  whom  you  went  there,  for  what  purpose  you  went 
there,  and  all  that  happened  to  you  there  that  day. — Ans.  I  was  at  Fayette,  Miss.,  a 
few  days  before  the  election;  I  went  there  in  company  with  Mr.  H.  Kernaghan;  we 
arrived  at  Fayette  about  12  or  1  o'clock;  a  short  time  after  our  arrival  a  crowd  of 
men,  eight  or  ten  in  number,  all  white,  came  to  Mike  Howard's  ofBce ;  Mr.  Kerna- 
glian,  myself,  and  Lewis  Robinson,  chairman  of  the  Republican  committee  of  Jeflfer- 
8on  County,  were  in  the  ofiSce  in  consultation  as  to  the  best  time  to  have  our  speak- 
ing at  that  point.  We  had  gone  there  for  the  purpose  of  having  a  Republican  meet- 
ing on  that  day.  One  of  the  crowd  of  men  that  came  to  the  office  spoke  in  a  loud 
tone  of  voice,  and  said,  "Come  out  here!"  I  was  sitting  near  the  door,  and  asked 
him,  '•  WhoT"  "You,  by  God!"  was  the  answer.  I  went  out  on  the  sidewalk  and 
there  found  10  or  twelve  men.  They  asked  me  what  I  wanted  there  ;  I  told  them  I 
had  come  to  accompany  Mr.  Kernaghan,  at  his  request;  they  told  me  that  I  should 
leave  that  town  on  the  first  train,  or  they  would  make  it  red-hot  for  me;  I  asked 
what  I  had  done,  whether  I  was  disturbing  anybody  or  not.  Several  of  the  crowd 
spoke  almost  at  once,  and  said,  "By  God,  we  don't  care  to  debate  it  with  you  at  all." 
At  that  time  Mr.  Kernaghan  came  to  the  door  and  said  to  the  crowd,  "Don't  disturb 
this  man;  I  brought  him  her-;  I  am  the  one  if  you  want  to  disturb  anybody,  and 
not  him."  The  reply  was,  "  We  are  not  going  to  have  any  Radical  speaking  here  by 
anybody."  Some  one  in  the  crowd  said,  "We  propose  to  manage  our  own  affairs," 
or  words  to  that  effect.  I  then  went  back  into  Mike  Howard's  office ;  Mr.  Kernaghan 
went  out,  and  said  to  me  to  stay  there  a  few  minutes  tUl  he  came  back;  I  went  to 
the  door  a  few  seconds  afterwards,  the  crowd  of  men  having  returned  to  the  hotel, 
some  20  or  30  steps  off. 

I  saw  Col.  Chas.  E.  Hooker  sitting  in  a  chair  on  the  sidewalk  at  the  hotel ;  these 
gentlemen  were  all  standing  around  him  ;  I  came  out  of  the  office  and  started  to  go 
np  to  where  he  was ;  Lew^is  Robinson,  the  chairman  of  the  committee,  told  me  I  had 
better  not  go  np  there,  that  I  would  get  into  trouble;  I  thought  he  knew  best,  and 
didn't  go ;  I  then  sent  a  messenger  to  Mr,  R.  H.  Truly,  asking  him  not  to  let  them 
interfere  with  me  if  he  could  help  it ;  he  sent  me  a  message  that  he  would  do  all  in 
his  power  to  see  that  I  wasn't  disturbed.  Mr.  Kernaghan  returned  in  a  short  while, 
and  said  we  would  have  to  abandon  the  meeting  ;  Mr.  Lewis  Robinson,  chairman  of 
the  committee,  agreed  with  us  that  we  could  not  hold  a  meeting  there.  A  short  time 
afterwards  a  messenger  came  in  and  notified  me  that  it  had  been  asserted  on  the 
streets  by  white  men  that  I  had  in  my  possession  Republican  tickets,  and  that  was 
why  they  were  after  me.  I  will  state  that  I  had  2,000  Republican  tickets  for  the 
Fayette  box.  I  then  went  to  the  depot  alone  and  on  foot ;  I  tried  to  get  somebody 
to  accompany  me  there,  as  I  felt  uneasy.  When  we  first  reached  Fayette  that  day 
there  were  two  or  three  hundred  colored  people  in  the  street;  in  twenty  minutes 
after  the  excitement  I  couldn't  find  a  colored  man  to  go  to  the  depot  with  me  ;  I  met 
a  friend  while  en  route  to  the  depot  who  advised  me  not  to  be  caught  with  the  tick- 
ets; I  went  to  the  residence  of  J.  D.  Weston,  south  of  the  depot;  I  had  the  tickets 
in  my  valise ;  I  took  them  out  and  put  them  in  the  tire  and  burnt  them  up  ;  the  train 
came  a  short  time  afterwards  and  I  got  on  it  and  went  to  Harriston  ;  some  of  the 
same  crowd  who  had  ordered  me  from  Fayette  were  at  Harriston,  and  followed  me 
around  the  depot  and  every  other  place  that  I  went  arouud  there  ;  commenced  abus- 
ing me  by  cursing  me,  etc.;  I  tried  to  remonstrate  with  them  by  telling  them  I  hadn't 
disturbed  anybody;  I  met  a  white  friend  of  mine  there  and  appealed  to  him  to  go 
aboard  of  the  train  with  me,  and  he  did  so  ;  I  there  took  the  train  and  went  through 
to  Vicksburg. 

(Objected  to  as  incompetent  and  irrelevant,  for  the  reason  that  the  events  related 
occurred  some  time  prior  to  the  election,  and  were  not  in  themselves  of  the  character 
to  affect  its  validity.) 

Int.  4.  Who  was  this  white  friend  who  protected  you  at  Harriston  T — Ans.  M.  R. 
Jones,  of  Carlisle,  Miss. 

Int.  5.  Was  the  crowd  who  attacked  you  in  Fayette  quiet  and  peaceable  in  their 
behaviour,  or  boisterous  and  angry  T — Ans.  They  were  apparently  angry,  usiug  curse- 
words  for  almost  every  expression. 

Int.  6.  Were  matters  at  that  time  on  the  streets  of  Fayette  quiet  or  excited  f — 
Ans.  Up  to  the  tim«^he  crowd  came  to  the  office  they  were  quiet.  The  moment  I 
came  to  the  door  the  negroes  seemed  to  understand  it  and  commenced  squatting  and 
dodging. 


KERNAGHAN   VS.    HOOKER.  791 

Int.  7,  Yon  have  said  that  when  yon  first  went  there  there  was  a  large  nurnher  of 
colored  people  in  the  town,  and  that  after  this  attack  oh  you  you  could  not  find  a 
colored  man  to  go  to  the  depot  with  you ;  what  become  of  them  ? — Ans.  They  lei.'  the 
streets  ;  I  could  not  tell  where  they  went. 

Int.  8.  Was  there  any  noise,  or  disturbance,  or  shooting,  or  fast  riding  on  the 
streets  of  Fayette  that  day  ? 

(Objected  to  as  leading  and  incompetent.) 

Ans.  I  heard  no  shooting  or  fast  riding,  and  know  of  no  disturbance  except  that 
already  told  about. 

Int.  9.  At  the  time  you  came  to  the  door  of  the  office,  when  the  crowd  was  stand- 
ing on  the  sidewalk  cursing,  as  yon  have  described,  was  Col.  Hooker  then  sitting  on 
the  sidewalk,  at  the  place  you  have  stated  T 

(Objected  to  as  leading  and  incompetent.) 

Ans.  I  don't  think  he  was  at  that  immediate  time,  but  he  was  a  few  minutes  after- 
wards, but  ho  was  sitting  there,  though,  when  the  crowd  went  back. 

Int.  10.  You  have  stated  that,  up  to  a  few  months  since,  your  home  has  been  in 
£!laiborne  County.  Were  you  in  Claiborne  County  at  any  time  previous  to  election 
day  in  1888 ;  if  so,  when  and  at  what  places  f — Ans.  I  was  at  Port  Gibson  on  the 
29th  of  October,  and  attended  a  Republican  meeting  there  that  day. 

Int.  11.  Are  you  well  acquainted  with  the  colored  people  of  Claiborne  CountT? — 
Ans.  I  am  ;  know  almost  the  name  of  every  man  in  the  county. 

Int.  12.  What  is  the  politics  of  the  colored  voters  of  that  county  T 

(Objected  to  as  incompetent  and  irrelevant,  because  it  asks  about  the  politics 
of  the  colored  people  in  general,  and  this  contest  relates  to  a  particular  election, 
and  because  it  calls  for  mere  matter  of  opinion.) 

Ans.  Rt-publicau  ;  and  they  vote  the  Republican  ticket  almost  to  a  man. 

Int.  13.  State,  if  you  can,  what  party  has  the  majority  of  votes  in  Claiborne 
County  when  the  elections  are  fairly  held,  and  what  its  majority  is  in  said  county. 

(Objected  to  as  calling  for  mere  matter  of  opinion,  and  because  it  is  immaterial  in 
contesting  this  particular  election.) 

Ans.  The  Republican  party  has  a  majority  of  2,500  or  3,000 ;  and  it  always  went 
that  way  in  fair  elections. 

Int.  14.  What  is  the  registered  vote  of  Claiborne  County,  and  what  part  of  it  is 
•white  and  what  colored  ? 

(Objectfd  to  as  incompetent  and  irrelevant,  the  registration  books,  or  copies  thereof, 
being  the  best  evidence,  and  because  the  nuniber  of  registered  voters,  as  shown  by 
the  registration  books,  is  no  evidence  of  the  number  of  votes  actually  cast,  nor  the 
candidate  who  received  them.) 

Ans.  The  registered  vote  is  about  2,000  properly,  about  700  of  whom  are  white  and 
the  others  colored.     Only  about  half  the  voters  are  registered. 

(Objected  to  because  the  witness  assails  in  general  terms  the  correctness  of  an  offi- 
cial record  prepared  by  competent  authority  under  the  laws  of  this  State,  without 
producing  the  records  or  a  copy  thereof,  and  without  showing  that  any  person  en- 
titled to  registration  has  ever  been  refused.) 

Int.  15.  State  why  such  a  large  part  of  the  voters  are  not  registered  in  said  county, 
and  how  long  such  has  been  the  condition  of  the  registration  there. 

(  Jbjected  to  as  incompetent  and  irrelevant,  as  calling  for  mere  matter  of  opinion 
about  facts  not  aff'ecting  the  validity  of  this  particular  election.) 

Ans.  It  is  because  of  the  general  methods  of  the  Democrats  of  Claiborne  County  in 
carrying  elections,  no  matter  which  way  the  votes  are  cast,  that  a  large  portion  of 
the  Republicans  have  refrained  from  registering  on  that  account. 

Int.  16.  Have  they  had  a  new  registration  in  Claiborne  County  of  late  years,  and 
if  BO,  in  what  year  was  it,  or  is  the  county  using  its  old,  original  registration  books? 

(Objected  to  as  incompetent  and  irrelevant,  because  neither  of  said  books  or  copies 
thereof  are  introduced,  and  because  the  witness  is  in  no  way  connected  with  said 
books,  as  cnstodian  or  otherwise.) 

Ans.  They  have  had  a  new  registration  in  1886  or  1887. 

(Answer  objected  to  because  the  fact  that  the  county  is  using  new  registration 
books  in  no  way  affects  the  validity  of  the  election  in  question.) 

Int.  17.  Did  the  Republican  voters  of  Claiborne  County  generally  vote  in  the  last 
election,  that  of  November,  1888,  and  if  not,  why  not? 

(Objected  to  as  incompetent  and  irrelevant,  because  the  mere  failure  of  persons  to 
vote  does  not  prejudice  an  election,  no  matter  what  their  politics  is,  and  because  the 
question  calls  for  mere  matter  of  opinion.) 

Ans.  They  diil  not  vote,  but  very  few,  at  this  last  election.  It  was  becaase  the  Re- 
publican executive  committee  had  asked  to  have  a  county  commissioner  appointed 
and  was  refused.  One  Henry  Weekly  was  appointed  against  their  protest.  It  was 
then  decided  by  the  committee  that  we  would  have  no  show,  that  we  would  have  no 
commissioner  to  look  a/ter  our  interests.  I  was  at  that  time  and  still  am  a  niember 
of  the  committee,  and  recommended  A.  M.  Addison  as  commissioner,  but  they  refused 
to  appoint  him. 


792  KERNAGHAN   VS.    HOOKER. 

Int.  18.  Who  was  this  Henry  Weokly,  and  what  was  his  political  status,  and  by 
whom  was  he  nominated  as  the  Republican  county  comuiissioner? 

(Ol>jected  to  as  incompetent  and  irrelevant,  the  matter  of  the  appointment  of  the 
election  commissioners  being  a  matter  coiitided  to  tho  discretion  of  u  State  board  that 
is  in  no  way  bound  by  outside  nominations,  suggestions,  or  interference.) 

Ans,  He  is  a  colored  man  who  has  been  always  known  to  be  a  man  used  by  the 
Democrats  of  Claiborne  County,  and  who  voted  the  Democratic  ticket.  I  do  not  know 
by  whom  he  was  nominated,  but  not  by  the  Republican  executive  committee,  or  any 
member  of  it,  as  far  as  I  know. 

Int.  19.  What  is  his  business,  and  can  he  read  and  write  wellT — Ans.  He  is  a  car- 
penter by  trade,  and  can  scarcely  write  his  name ;  I  don't  know  that  he  can  read  at 
all. 

Int.  20,  Can  he  read  writing  or  only  print  ? — Ans.  My  impression  is  that  he  can  not 
read  writing,  as  he  has  scarcely  any  qualifications  at  all. 

Cross-examined : 

X  Int.  1.  What  is  the  nature  of  your  farming  interests  in  Claiborne  County  T — Ans. 
My  mother  lives  there  and  has  farming  interests,  and  I  assist  her,  and  am  interested 
with  her. 

X  Int.  2.  Have  yon  no  other  occupation  f — Ans.  I  have ;  I  am  engaged  in  selling 
lands,  and  have  an  intelligence  office  here. 

X  Int.  3,  What  is  the  nature  of  the  intelligence  office?— Ans.  Furnishing  labor  to 
planters  and  others. 

X  Int.  4.  What  time  in  the  day  did  Mr.  Kernaghan  tell  you  at  Fayette  that  there 
would  be  no  speaking  T — Ans.  It  was  probably  as  late  as  three  o'clock  in  the  evening 
or  afterwards. 

X  Int.  5.  How  long  was  that  before  or  after  the  party  told  you  to  leave  T — Ans. 
The  party  had  told  me  to  leave  at  least  an  hour  before  that  time. 

X  Int.  6.  How  long  was  it  after  Kernaghan  told  you  there  would  be  no  speaking 
before  you  left  on  the  train  for  Harriston  f — Ans.  About  an  hour. 

X  Int.  7.  Who  was  the  person  who  came  and  told  you  that  you  had  been  disturbed 
because  you  had  Republican  tickets  for  distribution  ? — Ans.  His  name  I  do  not  know ; 
he  was  a  colored  man. 

X  Int.  8.  Was  he  a  Democrat  or  a  Republican  ? — Ans.  I  couldn't  say. 

X  Int.  9.  Had  you  shown  the  tickets  to  any  one  that  day? — Ans.  I  had  only  shown 
them  to  the  chairman  of  the  Republican  executive  committee,  Lewis  Robinson  ;  a 
few  others,  whose  names  I  don't  know,  were  present  when  I  showed  them. 

X  Int.  10.  Was  any  one  present  when  you  burnt  them  ? — Ans.  There  was,  Mrs.  J. 
D.  Weston. 

X  Int.  11.  Had  Col.  Hooker  spoken  when  you  left  Fayette,  and  if  so,  did  you  hear 
him? — Ans.  I  was  informed  that  he  was  speaking  when  we  reached  Fayette;  I  did 
not  hear  him. 

X  Int.  12.  What  time  did  you  reach  Fayette  ? — Ans.  Between  12  and  1  o'clock. 

X  Int.  13.  Why  did  yon  not  distribute  the  tickets  during  the  several  hours  that 
elapsed  before  the  men  disturbed  you  ? — Ans.  It  was  because  my  intention  to  give 
them  to  Lewis  Robinson,  and  he  absolutely  refused  to  take  them,  and  said  he  wouldn't 
be  caught  with  them  for  anything. 

(So  much  of  the  answer  as  states  what  Lewis  Robinson  said  objected  to.) 

X  Int.  14.  Were  there  no  other  persons  there  you  could  have  left  them  with  ? — 
Ans.  I  saw  no  one  else  except  Mike  Howard,  whom  I  met  en  route  to  the  depot,  and 
he  refused  to  take  them. 

X  Int.  15.  Had  you  asked  either  Lewis  Robinson,  Mike  Howard,  or  any  one  else  to 
take  them  before  the  meii  waited  on  you? — Ans.  I  had  told  Robinson  I  had  them, 
but  did  not  otFer  them  to  him  until  I  was  about  to  start  off.  I  did  not  offer  them  to 
any  one  else,  except  Howard,  while  going  to  the  depot. 

X.  Int.  16.  Did  you  know  the  men  who  disturbed  you  at  Fayette  ? — Ans.  I  only 
knew  one  man  in  the  crowd. 

X  Int.  17.  Were  any  of  the  Harriston  people  in  Fayette  that  day  ? — Ans.  I  couldn't 
Bay. 

X.  Int.  18.  Did  the  people  that  you  saw  at  Fayette  and  afterwards  at  Harriston  go 
ont  on  the  same  train  with  you  ? — Ans.  Two  of  them  did. 

X  Int.  19.  Did  not  they  live  at  Harriston  or  in  the  neighborhood? — Ans.  My  im- 
pression is  that  one  of  them  lived  at  Red  Lick,  but  I  don't  think  the  other  did. 

X  Int.  20.  Did  General  Hooker  come  out  to  Harriston  on  the  same  train  with 
you  ? — Ans.  I  don't  think  he  did;  I  didn't  see  him. 

X  Int.  21.  When  did  you  first  see  the  men  who  disturbed  you  in  Fayette  * — Ans. 
They  came  up  in  a  body  in  front  of  Mike  Howard's  door  about  half  an  hour  after  I 
reached  Fayette. 

X  Int.  2'.^.  Had  you  seen  them  at  all  before  you  went  to  the  door  of  the  office  to 
meet  them  ? — Ans.  I  had  not. 


KERNAGHAN   VS.    HOOKER.  793 

X  Tnt.  23.  Have  you  not  related  here  this  morning  an  incident  that  occurred  dur- 
ing the  present  winter,  in  which  a  white  planter,  a  Democrat,  and  socially  and  polit- 
ically prominent,  who  had  gone  to  Jeiferson  County  to  procure  hands  for  his  planta- 
tion in  another  county,  was  waited  upon  by  residents  of  Jefterson  County  and  told 
to  leave  ?— Aus.  I  was  informed  that  such  an  incident  occurred,  and  told  it  here  this 
morning. 

X  Int.  24.  Was  not  Mr.  Kernaghan  invited  to  divide  time  with  Colonel  Hooker  at 
Fayette  that  dayf — Ans.  I  don't  know  that  he  was;  Mr.  Kernaghan  has  told  me  so 
since. 

X  Int.  25.  Was  not  the  meeting  that  Colonel  Hooker  addressed  a  general  public 
meeting,  at  which  persons  of  both  parties  and  races  were  present? — Ans.  I  couldn't 
say ;  1  was  not  present  at  any  time  during  the  speaking. 

E.  W.  Jones. 


We  also  quote  the  testimony  of  J.  W.  Cain: 


Int.  1.  State  your  name,  age,  residence,  and  occupation. — Ans.  J.  W.  Cain;  23years; 
Jackson,  Miss.;  am  on  the  police  force  of  the  city. 

Int.  2.  If  you  were  present  at  a  Democratic  meeting  held  in  the  capitol  on  the  night 
of  the  5th  of  November,  1888,  being  the  night  before  the  election,  state  what  arrange- 
ments or  agreements  were  made  there,  or  after  said  meeting,  by  the  parties  there  assem- 
bled, in  regard  to  the  tiring  of  cannon,  and  how  the  same  was  afterwards  carried  out. — 
Ans.  It  was  proposed  that  we  were  to  fire  the  cannon  early  next  morning,  and  some 
of  the  boys  proposed  to  carry  it  through  "Nigger  Town"  that  night.  They  fired 
it  out  there  perhaps  a  dozen  times  or  more ;  stopped  in  some  places  and  fired  it  in  front 
of  the  houses.  They  stopped  once  in  front  of  the  colored  hall,  where  they  were  holding 
some  sort  of  a  meeting,  and  the  reason  they  didn't  fire  it  there  was  that  it  was  in  front 
of  a  house  where  a  woman  was  about  to  die,  and  some  one  came  out  and  begged  ns  not 
to  shoot.  We  went  to  West  Jackson  then,  and  stopped  in  front  of  the  lunch  stand,  and 
then  came  back  to  the  capitol. 

Int.  3.  Were  there  many  or  few  people  went  with  the  cannon,  and  how  did  they  act 
and  what  did  they  do  and  say  ? — Ans.  There  were  about  12  or  15  went  with  it.  Some 
made  the  remark  that  it  would  be  a  good  thing  to  carry  it  out  there  to  bluff  the  negroes 
and  keep  them  away  from  the  polls. 

Int.  4.  Were  they  noisy  or  quiet  in  their  travels  with  the  cannon  f 

(jObjection  by  contestee's  counsel  that  the  question  is  leading.) 

Ans.  They  were  very  noisy. 

Int.  5.  If  they  used  any  threatening  language  while  passing  through  the  colored 
neighborhood,  state  what  it  was. 

(Objection  by  contestee's  counsel  that  the  question  is  leading,  and  assumes  the  ex- 
istence of  a  state  of  facts  about  which  there  has  been  no  proof.) 

Ans.  Some  said:  "You  damned  black  sons  of  bitches,  you  wouldn't  come  to  the 
door  to  see  what  this  cannon  was  being  fired  for  if  you  knew  the  effect  they  were 
trying  to  have  on  you,"  and,  "  You  had  better  not  come  to  the  polls." 

Int.  6.  If  you  know  of  any  act  of  intimidation  or  violence  committed  in  Jackson 
on  that  night,  state  the  same  fully. — Ans.  That  night,  I  suppose  it  was  about  11  or 
12  o'clock,  after  the  meeting  adjourned,  I  was  in  company  with  some  gentlemen, 
Mr.  Walt.  Hendricks  was  one  of  them,  Mr.  Horace  Perry  was  another,  and  walking 
on  the  V.  and  M.  Railroad  towards  West  Jackson.  There  is  a  house  near  the  rail- 
road belongs  to  Mrs.  Spongier.  There  were  some  men  there  bursting  in  the  door  and 
cursing  the  niggers,  telling  them  the  damned  sons  of  bitches  had  better  keep  away 
from  the  polls,  if  they  didn't  that  every  one  of  them  would  be  killed,  or  language  to 
that  effect.  They  had  some  straps  beating  on  the  side  of  the  house  and  said  they 
wanted  one  of  them  out  of  that.  Said  they  wanted  Thornton  Reynolds  out  of  there. 
The  men  had  handkerchiefs  over  their  faces ;  they  were  masked.  Some  of  them 
from  the  inside  answered  that  the  "  nigger"  was  not  in  there.  Then  they  commenced 
to  burst  in  the  window  lights.  After  that  they  commenced  a  shooting.  About  20 
shots  were  fired  into  the  house— at  least  that.  The  crowd  dispersed  after  that.  We 
started  on  towards  West  Jackson,  and  heard  several  shots  in  different  portions  of  the 
the  town.  We  then  changed  our  minds — not  to  go  to  West  Jackson — and  came  back 
up  town. 

Int.  7.  Of  what  ward  are  you  a  voter? — Ans.  Of  the  South  ward. 

Int.  8.  If  you  were  present  when  the  polls  were  opened  in  that  ward  on  the  6th  day 
of  November  last,  state  what  time  of  day  they  were  opened. — Ans.  About  half  past  ten 
or  eleven  o'clock. 

Int.  9.  Were  yon  about  the  polls  at  nine  o'clock  that  morning  and  from  that  till  the 
polls  were  opened  ? — Ans.  Yes,  sir. 

Int.  10.  What  was  the  reason  that  the  polls  were  not  opened  sooner  f — Ans.  The  rea- 
son was  that  there  was  a  gentleman's  name  on  the  ticket  spelled  wrong.  His  name 
was  "  Candler"  and  they  had  it  "  Chandler." 


794  KERNAGHAN   VS.   HOOKER. 

Int.  10.  On  which  ticket  was  this,  and  how  did  that  delay  the  election  ?— Ans.  Dem- 
ocratic ticket ;  had  to  wait  till  they  could  print  some  new  tickets. 

Int.  11.  What  number  of  people  assembled  at  the  polls  between  the  hours  of  nine 
and  eleven  o'clock,  before  the  polls  were  opened! — Ans.  There  were  a  good  many 
came  there  and  went  away;  don't  know  the  exact  number. 

Int.  12.  Were  those  people  who  so  came  and  went  away  Republicans  or  Demo- 
crats?—Ans.  Most  of  them  were  negroes;  I  couldn't  say;  most  every  negro  is  a  Repub- 
lican, especially  in  Presidential  elections. 

Int.  13.  If  you  know  of  any  bogus  Republican  tickets  being  brought  to  those  ^olls 
that  day,  state  fully  what  instructions  were  given  in  regard  to  them,  and  by  whom 
the  instructions  were  given,  and  who  brought  them  there. — Ans.  Mr.  R.  H.  Henry 
brought  them  there.  He  brought  the  ones  he  gave  to  me.  He  had  a  big  roll  of  them ; 
he  said  they  were  bogus  tickets;  I  think  that's  all  he  said,  I  commenced  dishing 
them  out,  swapping  tickets  with  the  negroes.  I  gave  some  of  them  to  Jim  Hardy, 
and  I  gave  one  or  two  to  Col.  Hamilton.  Mr.  Joe  White  took  some  of  the  tickets  from 
negroes  to  whom  1  had  given  them  and  said  he  was  going  off  to  measure  them,  I 
told  Mr,  Henry  and  he  said,  keep  quiet — say  nothing  about  them. 

Int.  14.  If  you  know  anything  of  any  conspiracy  or  proposed  plan  on  foot  on  the 
night  before  the  election  to  commit  any  violence  on  the  person  of  any  Republican  or 
Republicans  here,  state  who  it  was  that  proposed  it  and  all  about  it. — Ans.  I  don't 
know  of  any  that  night. 

Int.  15.  Do  you  know  of  any  such  plan  or  proposition  on  foot  just  before  said  elec- 
tiont — Ans.  Mr.  L.  F.  Chiles  said  that  he  and  Geu.  Wm.  Henry  had  been  talking,  and 
said  it  would  be  a  good  idea  to  take  Charlie  Morgan  down  in  the  swamp  and  tie  him 
to  a  tree  till  after  the  election,  as  he  was  a  leader  among  the  negroes,  and  put  some- 
body to  watch  him. 

Int.  16.  W^ere  any  propositions  made  by  him  or  any  one  else  for  you  and  your  friends 
to  carry  out  this  plan  ? — Ans.  Yes,  sir. 

Int.  17.  Who  made  such  proposition? — Ans.  Mr.  L.  F.  Chiles. 

Int.  18.  What  offices,  if  any,  did  Mr.  Chiles  hold  at  that  time  and  now  t — Ans.  He 
was  a  deputy  sheriff  aud  alderman  of  the  city  of  Jackson,  and  holds  both  of  those 
ofiices. 

Int.  19.  To  what  political  party  do  you  belong  T — Ans.  I  am  a  Democrat ;  Ihave  al- 
ways been,  and  have  never  voted  anything  but  a  Democratic  ticket. 

And  on  cross-examination : 

X  Inter.  90.  Give  us  the  name,  dimensions,  carriage,  and  history  of  the  cannon  used 
on  that  occasion. — Ans.  She  is  named  "Little  Moses;"  size  a  little  over  two  feet 
long  ;  bore  about  2^  inches  in  diameter  ;  rigged  on  the  wheels  of  a  sulky  plow  ;  don't 
know  its  history;  it  is  generally  fired  about  election  day,  to  let  'em  know  we  are 
going  to  have  a  fair  election  and  to  announce  meetings  of  the  Democratic  club. 
•  #«••## 

Re-examined: 

Int.  1,  To  whom  does  this  cannon,  "Little  Moses,"  belong? — Ans.  To  a  party  of 
four — L.  F.  Chiles,  A.  G.  Lewis,  and  A.  J.  Davis.  I  don't  know  who  the  other  one 
is ;  may  be  Tuck  Holland. 

Int.  2.  If  Mr.  Chiles  holds  any  offices,  state  what  they  are. — Ans.  Deputy  sheriff 
of  Hinds  County,  alderman  of  the  city  of  Jackson,  and  secretary  of  the  Mississippi 
State  Fair  Association. 

Int.  3,  If  Mr.  Lewis  holds  any  office,  state  what  that  is. — Ans,  Treasurer  of  Hinds 
County. 

Int.  4.  If  Mr.  Holland  holds  any  office,  state  what  that  is. — Ans.  I  don't  know 
whether  he  holds  any  office. 

Int.  .5.  Where  is  Holland  now? — Ans.  In  Salt  Lake  City,  Utah. 

Int.  6.  Does  he  not  hold  some  position  under  the  Government  there? — Ans.  Not 
that  I  know  of. 

Int.  7.  In  your  progress  with  the  cannon,  "Little  Moses,"  that  night,  did  you  go 
np  into  the  North  ward  and  fire  the  same  before  the  doors  of  any  Democrats  ? — Ans. 
We  did  not. 

Int.  8.  Why  didn't  yon  do  so  ? — Ans.  We  knew  the  cannon  wouldn't  have  any  effect 
on  white  men. 

Int.  9.  Did  you  go  up  there  and  do  any  cursing,  swearing,  and  hallooing  before 
the  doors  of  any  white  Democrats? — Ans.  We  did  not. 

Int,  10,  Why  didn't  you? — Ans,  We  didn't  think  it  was  necessary. 

Int.  11.  Did  you  then  think  it  was  necessary  to  go  into  the  colored  parts  of  the  city 
and  tire  the  cannon,  and  curse  and  swear,  and  halloo  before  the  doors  of  the  people 
there? — Ans.  I  did ;  to  keep  them  away  from  the  polls. 

Int.  12.  You  have  stated  in  your  cross-examination  that  you  are  a  policeman  of  the 
city  of  Jackson,  and  that  while  off  duty  the  night  before  the  election,  you  saw  certain 


KERNAGHAN   VS.    HOOKER.  795 

disorderly  proceedinj^s  and  did  not  interfere;  was  not  the  principal  reason  of  yournon- 
interierence  at  that  tiniB  because  of  a  general  understanding  among  Democratic  city 
and  county  oificials  in  this  city  and  county,  that  at  and  just  before  election  times 
Democrats  are  privileged  to  commit  almost  any  acts  they  please,  no  matter  how  out- 
rageous or  disorderly,  which  may  tend  to  intimidate  Republican  votes  from  the  polls. 
Was  this  not  the  real  reason  why  you  did  not  interfere? — Ans.  Yes ;  it  was. 

Int.  i3.  Is  it  not  a  fact  that  the  grand  juries  in  this  county  never  indict  anybody 
for  outrages  committed  at  and  just  before  election  times  T— Ans.  I  never  heard  of 
them  doing  it. 

Int.  14.  Do  they  ever  indict  any  one  for  frauds  on  the  ballot-box  of  this  county  T — 
Ans.  I  never  heard  of  any. 

The  witness  here  expressed  a  desire  to  make  a  correction  in  his  answer  to  interroga- 
tory 12,  last  above  given,  and  proceeding  said:  "  I  do  not  believe  that  every  sort  of 
outrage  would  be  tolerated,  but  I  believe  that  so  far  as  intimidating  niggers  is  con- 
cerned, that  would  be  winked  at  by  the  officers  of  the  law." 

To  what  extent  the  frauds  above  recounted  afifected  the  result,  it 
is  impossible  to  ascertain  from  the  evidence.  It  is  evident,  however, 
from  the  testimony  of  Cain,  that  there  could  be  no  such  thing  as  a  fair 
election  in  the  city  of  Jackson.  It  is  also  evident  from  the  testimony 
of  Truly  and  Jones  that  contestant  lost  several  hundred  votes  at  Fay- 
ette because  the  conditions  there  were  such  that  his  tickets  could  not 
be  distributed.  The  declarations  of  ''  Ooote  "  White  show  a  willing- 
ness at  Brandon  to  resort  to  any  methods  to  defeat  the  will  of  the 
people. 

CLAIBORNE   COUNTY. 

In  Claiborne  County  no  Republican  tickets  were  distributed  and  no 
Republican  votes  were  cast  anywhere  in  the  county,  except  at  Port 
Gibson,  where  13  votes  are  returned  for  contestant,  and  exactly  13  col- 
ored voters  are  marked  "  voted  "  on  the  poll  book.  In  the  whole  county 
there  were  but  722  registered  white  voters.  Contestee  was  returned  602 
votes,  of  which  only  48  are  claimed  to  have  been  cast  by  colored  men. 
The  concurrent  testimony  of  a  large  number  of  witnesses  is  that  there 
was  very  great  indifference  among  both  white  and  colored  in  this  county 
in  regard  to  the  election  and  that  many  of  both  races  remained  away 
from  the  polls.  Notwithstanding  this  indifference,  if  the  returns  are 
true,  contestee  got  nearly  80  per  cent,  of  the  registered  white  vote,  a 
suspicious  showing  when  taken  in  connection  with  the  evidence.  But 
it  is  a  significant  fact  that  if  these  returns  are  correct  only  48  colored 
men  could  be  persuaded  to  vote  for  contestee  in  a  county  where  no  Re- 
publican tickets  were  to  be  had. 

In  district  No.  2,  15  colored  voters  are  marked  "voted."  It  is  in 
evidence  that  just  15  colored  men,  all  Republicans,  appeared  at  the 
polls,  but  none  of  them  voted  because  there  were  no  Republican  tickets. 
The  now  famous  process  of  counting  persons  "present  and  not  voting" 
seems  to  have  been  anticipated  and  somewhat  advanced  upon  in  this 
precinct. 

COPIAH  COUNTY. 

In  Copiah  County  there  were  counted  for  contestee  2,269  votes,  and 
for  contestant  458  votes.  In  the  following-named  precincts  the  returns 
have  been  proved  to  be  fraudulent  by  calling  the  individual  voters,  viz.: 
Eeathh  store,  Crystal  Springs  icest,  Crystal  Springs  east,  Hopewell,  Brow- 
er^s  store,  Mount  Hope,  Greenes  store,  and  Rockport.  For  example,  at 
ReatWs  store  52  witnesses  testify  that  they  voted  for  contestantj  only  II 
were  returned  for  him. 

Other  evidence  shows  that  many  others  in  addition  to  these  52  voted 
for  contestant.    At  Rockport  9  witnesses  testify  that  they  voted  for 


796  KERNAGHAN   VS.   HOOKER. 

contestant;  none  were  returned  for  him.  Those  who  testified  were  only 
a  portion  of  those  who  cast  Eepublican  votes  at  this  precinct.  In 
nearly  every  precinct  of  this  county  the  election  boards  were  composed 
entirely  of  Democrats. 

There  are  22  precincts  in  Copiah  County;  the  returns  in  8  are  conclu- 
sively proved  to  have  been  fraudulent ;  suspicion  attaches  to  the  others, 
but,  in  the  absence  of  evidence  sufficient  to  overturn  the  prima  facie  cor- 
rectness of  the  returns,  we  do  not  disturb  the  count  in  them.  Elimi- 
nating the  fraudulent  returns  and  restating  the  vote  of  Copiah  Counry, 
so  far  as  the  evidence  enables  us  to  do  so,  we  find  the  majority  lor  con- 
testee  in  this  county  reduced  from  1,811  to  808. 

HINDS  COUNTY. 

The  oflBcial  returns  from  Hinds  County  give  contestee  2,215  votes, 
and  contestant  945  votes.  In  this  county  the  colored  vote  outnumbers 
the  white  vote  nearly  three  to  one.  The  testimony  of  Cain,  already 
quoted,  shows  the  means  used  to  prevent  a  fair  election  in  the  city  of 
Jackson,  the  capital  of  the  State.  Frauds  are  })roved  to  ha\  e  been 
committed  in  other  precincts  in  this  county,  as  follows :  At  JAberty 
Grove,  19  more  votes  were  in  Ihe  box  than  there  were  names  on  the 
poll  list.  The  whole  vote  was  counted,  and  both  United  States  super- 
visors joined  in  a  report  that  the  return  was  fraudulent.  This  was  fi 
large  Eepublican  precinct,  and  the  fact  that  the  returns  showed  a 
Democratic  vote  in  excess  of  the  Democratic  voters  of  the  precinct, 
shows  that  these  extra  votes  counted  were  Democratic. 

At  Bolton  precinct  a  comparison  of  the  poll  book  with  the  registra- 
tion book  shows  that  74  names  in  the  poll  book  had  been  changed,  thus 
resulting  in  the  disfranchisement  of  74  duly  registered  voters. 

In  Utica  precinct  368  votes  were  returned  for  contestee  and  none  for 
contestant.  Reuben  Adams  was  ajjpointed  United  States  supervisor. 
His  commission  was  forwarded  to  him  by  mail  and  arrived  at  his  post- 
office  on  the  31st  day  of  October,  as  shown  by  the  postmark  on  the 
envelope  produced  in  evidence.  He  called  at  the  post-office  twice  dur- 
ing the  week  preceding  the  election  and  received  letters,  but  his  com- 
mission was  not  delivered  to  him  until  the  17th  of  November.  The 
check  marks  on  the  poll  book  show  that  only  266  persons  voted,  though 
contestee  is  generously  returned  as  having  received  308  votes. 

At  Auburn  box  223  votes  are  returned  for  contestee  and  none  for 
contestant.  Fifty-three  persons  only  are  marked  on  the  poll  list  as 
"voted"  at  this  precinct.     Similar  fraud  is  shown  at  the  Cayuga  box. 

At  the  Raymond  box  contestee  was  credited  with  198  votes  and  con- 
testant with  70,  yet  one  of  the  inspectois  of  the  election  testifies  that 
the  number  of  whites  who  voted  was  only  slightly  greater  than  the 
number  of  colored.  The  Republican  vote  grently  exceeds  the  Demo- 
cratic in  this  precinct,  but  either  through  a  feeling  that  it  was  unsafe, 
owing  to  past  i)ractices,  or  for  some  other  reason  not  disclosed,  a  com- 
paratively small  number  of  the  600  colored  voters  in  this  precinct  cast 
their  ballots. 

At  Dry  Grove  no  election  was  held.  There  were  present  at  the  poll- 
ing place  about  400  Republicans  and  50  Democrats.  A  Republican 
United  States  supervisor  was  present.  Charles  W.  Carraway,  whose 
testimony  has  already  been  referred  to,  gives  the  reason  for  not  holding 
an  election  ;  he  says :  "  I  did  not  ask  the  reason  why,  but  it  is  well  known 
the  Democratic  party  desired  no  election  held  there,  as  the  box,  on  a 
fair  count,  is  overwhelmingly  Republican." 


KERNAGHAN    V.S.    HOOKER.  797 

Jackson,  north  ward. — In  the  north  ward  of  the  city  of  Jackson  the 
man  appointed  as  Republican  inspector  voted  the  Democratic  ticket. 
The  ballot  box  was  removed  from  the  polling  place  before  counting, 
and  then  counted  in  secret. 

Jackson^  south  ward. — In  the  south  ward  Republican  tickets  prepared 
hy  the  Democrats,  not  in  conformity  to  the  requirements  of  the  law, 
were  distributed. 

MADISON  COUNTY. 

Canton^  west  ward. — In  the  west  ward,  precinct  of  Canton,  531  votes 
were  returned  for  contestee  and  17  for  contestant.  This  return  has 
been  proved  to  be  fraudulent  by  calling  the  individual  voters,  and 
should  be  rejected.  In  additioTi  to  the  individual  voters  who  testified,  and 
conclusively  proved  the  falsity  of  the  return,  from  300  to  400  Republi- 
can voters  entered  the  polling  place  to  vote.  The  method  of  voting  in 
this  ward  and  the  arrangements  for  receiving  ballots  tend  to  the  con- 
viction that  fraud  was  deliberately  planned.  The  poll  list  of  the  ward 
was  refused  to  contestant. 

Canton,  east  ward. — At  the  east  ward  in  Canton,  368  votes  were 
returned  for  contestee  and  10  for  contestant.  The  election  was  held  up- 
stairs, and  Republicans  were  prevented  from  going  up  to  vote  unless 
they  would  take  Democratic  tickets.  On  the  night  previous  to  the  elec- 
tion a  crowd  of  roughs  broke  into  the  house  of  a  Republican  voter  and 
terrorized  him,  so  tbat  he  kept  away  from  the  polls.  A  number  of 
railroad  men,  not  residents  of  the  district  and  not  registered,  voted  the 
Democratic  ticket,  the  inspectors  deciding  tbat  they  had  the  right  to 
vote  for  President  and  member  of  Congress  anj- where  in  the  State. 

In  Camden  precinct,  where  the  evidence  indicates  that  twice  as  many 
Republicans  as  Democrats  voted,  the  ballot  box  was  carried  away  from 
the  polls  at  dinner  time,  and  when  the  count  was  made  it  showed  68 
Democratic  majority. 

At  Sulphur  Springs  precinct  the  ballot  box  was  carried  off,  and  kept 
away  about  2  hours  against  the  protest  of  the  United  States  super- 
visor. The  evidence  tends  to  show  that  more  Republicans  than  Dem- 
ocrats voted  at  this  precinct,  yet  the  returns  give  contestee  124  and 
contestant  32.  In  this  countj'  the  action  of  the  majority  of  the  election 
commissioners  in  the  selection  of  precinct  inspectors  was  a  violation  of 
the  letter  and  spirit  of  the  law,  and,  to  say  the  least,  showed  a  willing- 
ness to  prepare  the  way  for  fraudulent  returns. 

BANKIN  COUNTY. 

At  Steen's  Creek  precinct,  Rankin  County,  230  votes  were  returned 
for  contestee  and  63  for  contestant.  The  testimony  of  T.  J.  Cooper, 
United  States  supervisor,  shows  that  the  ballot  box  was  taken  from  the 
polling  place  against  his  protest,  both  at  noon  and  in  the  evening  after 
the  close  of  the  election  and  before  the  commencement  of  the  count. 
When  the  counting  commenced,  one  of  the  inspectors  took  a  lot  of  Re- 
publican tickets  from  the  box  and  put  them  into  his  pocket. 

Threats  were  freely  made  against  the  supervisor,  and  he  was  induced 
to  leave  the  polling  place  and  go  home  before  the  count  was  completed. 
Sometime  during  the  night  a  gang  of  men  went  to  his  house  and  in- 
duced him  by  threats  to  sign  a  return  corresponding  to  the  return  made 
by  the  inspectors.  One  of  them  said  to  him,  "We'll  outswear  you  if 
you  should  live  to  make  your  report,  but  you  can't  live  to  make  it." 


798  KERNAGHAN    VS.    HOOKER. 

This  supervisor  followed  the  box  when  it  was  taken  from  the  polling 
place,  and  seemed  determined  to  discharge  his  whole  dut^-,  but  while  it 
was  being  carried  from  the  polling  place  and  back  again,  after  supper, 
it  was  dark,  and  the  box  was  kept  out  of  his  sight.  If  this  witness  is 
to  be  believed,  of  course  there  is  no  validity  to  the  return  from  this  pre- 
cinct. It  further  appears  that  a  large  number  voted  at  this  precinct 
who  were  not  registered. 

At  Brandon  precinct  the  United  States  supervisor  was  ejected  from 
the  polls.  He  appealed  to  the  governor  of  the  State,  who  was  present, 
and  the  governor  advised  him,  against  the  plain  letter  of  the  statute, 
that  he  could  only  stay  outside  to  aid  in  keeping  the  peace.  In  this 
precinct  Mr.  Pickett,  one  of  the  Democratic  inspectors,  carried  off  the 
ballot  box  both  at  dinner  and  supper  time.  The  count  was  not  com- 
pleted that  night,  and  this  same  Mr.  Pickett  took  the  box  away  and 
said  he  would  sleep  with  it.  The  polling  place  was  upstairs,  and  the 
colored  people  were  let  in  at  the  front  door  very  slowly,  while  the  white 
voters  were  let  in  at  the  back  door  and  had  no  diflQculty  in  voting. 
Pickett  is  shown  to  have  had  both  the  disposition  and  the  oppoitunity 
to  subvert  a  fair  election.  Inspector  McBeth  testified  that  the  colored 
vote  seemed  to  be  more  solid  that  day  than  usual.  The  returns  for  the 
precinct  gave  contestee  244  and  contestant  101. 

Fisgah. — The  conduct  of  Democrats  at  Pisgah  precinct  is  best  shown 
by  quoting  the  testimony  of  some  of  the  witnesses. 

Henry  Turnage  (pp.  261-262)  testified : 

When  I  got  there  Mr.  Miller  and  Mr.  Ed.  Davis  come  and  met  us  and  asked  us  if 
we  come  to  vote.  I  told  him  yes,  and  he  asked  me  did  I  have  a  ticket,  and  I  told  him 
yes,  sir.  He  asked  me  to  let  him  see  it,  and  I  give  it  to  him,  and  he  told  me  that 
wasn't  the  ticket  to  vote,  and  I  asked  him  why,  and  he  went  on  to  tell  me,  and  he 
said  he  would  give  me  a  ticket  to  vote,  and  I  told  him  I  didn't  want  his,  and  he  said 
he  didn't  want  mine.  He  asked  me  would  I  vote  the  ticket  he  give  me.  I  told  him 
"no,  sir."  He  said,  "  If  you  don't  vote  this  one  you  won't  vote  any."  I  told  him  all 
right ;  there  was  a  heap  of  men  there  that  wasn't  voting,  and  I  reckon  I  could  do 
without  too.  He  said,  "All  right;  if  you  vote  this  ticket  you  can  vote,  and  if  you  donH, 
God  damn  you,  can't  rote  narry  one."  1  said  "all  right,"  and  walked  ottfrom  him.  I 
went  on  'round  to  the  wagon  where  there  was  some  fellows  talking,  and  left  him.  I 
don't  know  where  he  went  or  what  he  done  after  that.  My  father  come  to  me  and 
told  me  to  less  go  home.  I  told  him,  "No,  sir;  I  am  going  to  stay  here  a  while  longer; 
/  think  I  will  vote  directly."  Mr.  Davis  walked  up  and  said  :  ''No,  you  won't  here  to-day 
nnleas  you  take  this  ticket  and  some  white  man  side  of  you,  and  tcalk  up  with  you  and  put  it 
in  for  you."  I  said:  "No,  sir;  I  won'tdothat ;"  and  he  said,"  You  had  just  as  well  go 
home,  then ;  iefore  you  or  any  other  God  damn  nigger  shall  go  up  there  and  vote,  unless  he 
vote  this  ticket  he  will  tcalk  in  blood  knee-deep."  I  told  him  all  right  and  walked  off  and 
got  on  my  horse  and  went  home. 

A.  G.  McKoy  testified  (p.  263): 

I  issued  nntil  I  saw  things  were  getting  brash ;  then  I  thought,  from  the  appearance 
I  saw,  and  actions,  it  would  be  better  for  me  to  stop ;  I  heard  several  remark  that 
those  tickets  icere  going  to  cause  hell  here. 

Wiley  Boyd  (pp.  269-270)  testified: 

I  went  up  to  the  polls  to  vote  and  they  said  I  couldn't  vote  there ;  said  no  nigger 
couldn't  vote  except  they  would  bring  a  white  man  with  him  ;  said  we  had  to  vote  their 
way  ;  that  this  was  their  country  and  they  were  going  to  rule  it.  Nat  Polk  and  Will 
Buckner;  Nat  Polk  had  a  stick  and  Will  Buckner  had  a  biickbat.  They  stood  up  to 
the  dead -line  and  said  no  nigger  couldn't  cross  the  dead-line  unless  he  carried  a  white 
man  in  with  him.  And  George  Deuson  he  took  me  off  behind  the  church  and  asked 
me  what  ticket  I  was  going  vote,  and  I  told  him  I  was  going  to  vote  the  Republican 
ticket;  and  he  asks  me  to  let  him  scratch  it,  and  I  told  him  no,  I  didn't  vote  a 
scratched  ticket.  He  said  then,  "  By  God,  we  have  ieen  begging  you  all  to  vote  with  us, 
and  if  you  don't  vote  with  us  to-day  we  are  going  to  make  you  vote  with  us."  And 
about  that  time  Joe  Boyd  was  standing  off  in  the  road  talking  to  Van  Thornton,  and 
he  hollowed  then,  "This  is  our  country,  by  God,  and  we  are  going  to  rule  it."  Then 
the  crowds  all  broke  to  him,  and  about  20  or  30  was  standing  waiting  to  vote,  and 


KERNAGHAN   VS.    HOOKER,  799 

they  got  in  behind  them  and  told  them  to  get  out  and  lenve  there,  and  got  in  before  them 
and  they  were  in  behind  them,  and  Geo.  Denson  shot  off  his  pistol  and  made  them  leave, 
and  Will  Biickner  pulled  off  his  coat,  and  several  more  others,  and  said  not  another 
nigger  should  vote  there  that  day.  And  saw  Will  Buckner  take  a  double-baTel  shotgun 
out  of  the  hind  part  of  a  buggy  and  turn  it  arouud  and  cover  it  up,  and  I  heard  Mr. 
Andrews  and  Nat  Polk  say  before  any  other  nigger  voted  there  they  uoidd  xiade  in  blood 
knee-deep. 

At  Shiloh,  where  the  return  shows  106  for  contestee,  and  20  for  con- 
testant, the  ballot-box  was  carried  away  from  the  polling  place,  and 
kept  away  nearly  two  hours. 

Irregularities  of  a  similar  character  took  place  in  other  precincts  of 
this  county.  Precinct  inspectors  asked  for  by  the  Republican  commis- 
sioner of  elections  to  represent  the  Kepublicans  on  the  election  boards, 
were  refused,  and  taking  into  consideration  all  the  evidence,  the  com- 
mittee are  convinced  that  frauds  sufficient  to  invalidate  the  returns 
were  committed  in  the  precincts  noted  and  some  others  in  this  county, 
but,  iuas  much  as  these  frauds  do  no  not  affect  a  sufficient  number  of 
votes  to  overcome  the  majority  returued  for  contestee,  the  committee 
do  not  attempt  to  restate  the  vote  in.  full,  and  determine  what  reductions 
ought  to  be  made  from  coutestee's  returned  majority. 

Taken  altogether,  the  record  discloses  a  deplorable  condition  of  affairs 
in  the  Seventh  Mississippi  district,  such  as  can  neither  be  excused  nor 
palliated.  For  the  reason  that  the  frauds  developed  in  the  evidence 
and  described  in  this  report  are  insufficient  in  amount  to  overcome  all 
the  majority  returned  for  contestee,  the  committee  recommend  the 
adoption  of  the  following  resolutions: 

Resolved.,  That  Henry  Kernaghan  was  not  elected  a  Representative  in 
the  Fifty-tirst  Congress  from  the  Seventh  Congressional  district  of  Mis- 
sissippi, and  is  not  entitled  to  a  seat  therein. 

Resolved.,  That  Charles  E.  Hooker  was  elected  a  Representative  in 
the  Fifty- first  Congress  from  the  Seventh  Congressional  district  of 
Mississippi,  and  is  entitled  to  retain  his  seat  therein. 


JAMES  HILL  vs.  T.  C.  OATOHINGS. 

THIKD  MISSISSIPPI. 


The  notice  of  contest  alleges  fraudulent  refusal  to  receive  the  ballots 
of  legal  voters ;  fraudulent  refusal  to  hold  elections  in  several  large  Re- 
publican precincts;  that  the  whole  election  machinery  of  the  district 
was  in  the  hands  of  friends  of  contestee,  in  violation  of  the  statutes ; 
that  the  United  States  supervisors  were  prevented  from  discharging 
the  duties  imposed  upon  them  by  law ;  and  that  the  returns  transmitted 
to  the  secretary  of  state  are  fraudulent. 

The  committee  find  frauds  of  various  sorts,  but  that  they  are  not 
shown  to  have  aflfected  enough  votes  to  overcome  the  whole  of  the  ma- 
jority returned  for  contestee.  A  letter  written  by  contestee  is  in  evi- 
dence which  the  committee  find  to  be  a  suggestion  to  hinder  unlawfully 
the  taking  of  testimony  in  the  case,  but  it  does  not  appear  that  the 
suggestions  were  acted  on. 

Mr.  Lacey  files  a  minority  report  contending  that  the  above-men- 
tioned letter  constructively  connects  contestee  personally  with  the 
frauds  found  to  have  been  practiced  at  the  election,  and  that  under 
such  circumstances  the  rule  ought  to  be  to  declare  the  seat  vacant.  The 
case  was  never  reached  by  the  House. 
(1)  Election  officers.    Partisan  appointment  of. 

"  A  statutory  provision  for  allowing  opposing  parties  to  have  repre- 
sentation on  all  election  boards  having  charge  of  the  conduct  of  elec- 
tions is  usually  deemed  necessary  to  secure  honest  results,  and  when 
fairly  executed  in  letter  and  spirit  may  as  a  rule  be  relied  on,  at  least 
so  far  as  counting  and  returning  the  vote  is  involved.  A  general  and 
willful  disregard  by  the  appointing  power  either  of  the  letter  or  spirit 
of  the  law  raises  a  strong  presumption  of  an  intent  on  the  part  of  the 
appointing  oflBcers  to  afford  opportunity  for  fraud.  •  •  •  While  the 
statute  does  not  direct  how  the  appointing  bodies  shall  make  selections, 
its  spirit  clearly  requires  that  in  selecting  representatives  of  the  differ- 
ent parties  the  wishes  of  those  representing  the  party  organization 
shall  be  considered,  and  that  the  appointees  shall  be  men  having  the 
confidence  of  their  political  associates.  The  selection  of  men  to  repre- 
sent a  political  party  on  an  election  board  who  habitually  vote  the  op- 
posite ticket,  who  are  not  trusted  in  their  party,  or  who  are  notoriously 
H.  Mis.  137 51  801 


802  HILL   vs.    CATCHINGS. 

iucompeteut,  is  not  a  compliance  either  with  the  letter  or  the  spirit  of 
the  statute."    •    *    * 

"  While  suspicion  attaches  to  all  such  precincts,  such  suspicion  is  not 
sufficient  to  invalidate  the  return,  in  the  absence  of  other  evidence,  but 
it  does  have  the  effect  of  requiring  less  evidence  to  overturn  the  prima 
facie  correctness  of  the  returns." 

(2)  United  States  Supervisor.    Interference  with. 

"  In  every  instance  where  a  United  States  supervisor  is  prevented 
from  discharging  his  duties,  as  provided  bj'  statute,  the  committee  hold 
that  such  fact  destroys  the  validity  of  the  return  and  requires  its  re- 
jection, leaving  the  parties  to  prove  the  vote  by  other  competent  evi- 
dence." 

(3)  United  States  Supervisors.    Duties  of. 

Section  2029  of  the  Eevised  Statutes  is  not  a  repeal  of  sections  2016. 
2017,  and  2018,  and  in  no  way  changes  the  duty  of  the  supervisors  '*  to 
be  and  remain  where  the  ballot  boxes  are  kept  at  all  times  after  the 
polls  are  opened  until  every  vote  cast  at  such  time  and  place  be  counted, 
the  canvass  of  all  votes  polled  wholly  completed,  and  the  proper  and 
requisite  certificates  or  returns  made." 

"  By  section  2029  the  power  to  order  arrests  is  taken  from  United 
States  supervisors  in  all  places  other  than  in  cities  of  20,000  inhabitants 
or  upwards,  and  their  duties  are  limited  to  witnessing  the  conduct  of 
the  election,  the  counting  and  making  return  of  the  result.  This  in- 
cludes the  power  and  duty  to  be  present  at  all  times  and  to  scrutinize 
the  count  and  return." 

(4)  £x  parte  affidavits. 

Ex  parte  affidavits  filed  by  the  contestant  were  not  considered  by 
the  committee,  there  being  nothing  in  the  record  to  justify  the  resort  to 
this  kind  of  proof. 


REPORT. 


Febrtjaey  25, 1891.— Mr.  Rowell,  from  the  Committee  on  Elections, 
submitted  the  following  report : 

The  Committee  on  Elections,  having  had  under  consideration  the 
contested-election  case  of  Hill  vs.  Catchings,  from  the  Third  Congres- 
sional distiict  of  Mississippi,  submit  the  following.report : 

At  the  election  held  November  6,  1888,  for  Representative  in  Con- 
gress from  the  Third  Congressional  district  of  Mississippi,  James  Hill 
was  the  Republican  and  T.  C.  Catchings  the  Democratic  candidate. 
Catchings  received  the  certificate  of  election,  his  majority  according  to 
the  returns  being  7,011. 

We  insert  the  returns  by  counties: 


Connties. 


Junes  HilL 


BoliTftr 

Coahoma..., 

Sharkey  

Quitman  .... 
Sunflower... 

Warren 

Washington 
lasaqucna  .. 

Tnnica 

Le  Flore 

Total . 


Catchings's  reported  mt^ority,  7,011. 

The  notice  of  contest  alleges  fraudulent  refusal  to  receive  the  ballots 
of  legal  voters ;  fraudulent  refusal  to  hold  elections  in  several  large  Re- 
publican precincts ;  that  the  whole  election  machinery  of  the  district 
was  in  the  hands  of  friends  of  contestee,  in  violation  of  the  statutes ; 
that  the  United  States  supervisors  were  prevented  from  discharging 
the  duties  imposed  upon  them  by  law ;  and  that  the  returns  transmitted 
to  the  secretary  of  state  are  fraudulent. 

The  population  of  the  district  is  largely  colored,  the  proportion  of 
colored  to  white  being  about  4  to  1.  The  evidence  discloses  the  fact 
that  a  large  majority  of  the  colored  voters  are  Republicans,  and  a  large 
majority  of  the  white  voters  are  Democrats.  On  a  fair  election,  with 
both  parties  equally  well  organized  and  with  equally  acceptable  candi- 
dates, there  is  no  question  but  that  the  district  would  go  Republican  by 
a  very  large  majority.  803 


804  HILL   vs.    CATCHINGS. 

The  committee,  however,  are  of  opinion,  from  the  evidence  presented 
to  them,  that  T.  0.  Catchings  was  elected  by  a  majority  of  all  the  legal 
votes  cast,  but  by  a  much  less  majority  than  was  returned  for  him.  He 
was  popular  with  his  party,  was  believed  to  be  especially  eificient  in 
representing  the  interests  of  his  district,  and  to  be  able  to  do  more  in 
the  way  of  securing  Government  aid  in  protecting  the  lands  of  the  dis- 
trict from  the  ravages  of  the  Mississippi  River  than  was  his  opponent. 
He  was  stronger  than  his  party,  and  was  supported  in  some  parts  of 
the  district  by  influential  colored  Republicans.  In  addition,  his  party 
was  well  organized  and  more  fully  registered  than  the  opposition. 

Mr.  Hill  was  popular  with  the  colored  Republicans  in  most  of  the 
district,  but  failed  to  secure  the  active  support  of  the  white  Republi- 
cans. In  a  portion  of  the  district  his  adherents  were  not  organized,  and 
in  only  a  small  portion  of  the  whole  district  did  he  have  that  kind  of 
effective  organization  which  would  enable  his  followers  to  poll  anything 
like  a  full  vote. 

In  reporting  that  coutestee  was  duly  elected,  as  shown  by  the  evi- 
dence, we  by  no  means  mean  to  be  understood  as  saying  that  the  elec- 
tion as  a  whole  was  free  and  fair.  On  the  contrary,  we  are  satisfied 
that  preparation  was  made  to  commit  fraud  if  necessary  to  secure  the 
election  of  contestee,  and  that  in  some  instances  the  preparation  ripened 
into  action.  By  the  statutes  of  Mississippi  the  election  machinery  of 
the  State  is  primarily  in  the  hands  of  the  governor,  lieutenant-gover- 
nor, and  secretary  of  state.  Previous  to  each  general  election  these 
State  officers  are  required  to  appoint  three  commissioners  of  election 
for  each  county,  not  all  of  whom  shall  be  of  the  same  political  party. 
These  commissioners  appoint  the  precinct  inspectors,  with  a  like  limi- 
tation as  to  party  affiliation. 

Such  a  statutory  provision  for  allowing  opposing  parties  to  have  repre- 
sentation on  all  election  boards  having  charge  of  the  conduct  of  elections 
is  usually  deemed  necessary  to  secure  honest  results,  and  when  fairly 
executed  in  letter  and  spirit  may  as  a  rule  be  relied  on,  at  least  so  far 
as  counting  and  returning  the  vote  is  involved.  A  general  and  willful 
disregard  by  the  appointing  power  either  of  the  letter  or  spirit  of  the 
law  raises  a  strong  presumption  of  an  intent  on  the  part  of  the  appoint- 
ing officers  to  afford  opportunity  for  fraud.  In  this  case  it  clearly  ap- 
pears that  the  State  officers  in  appointing  county  commissioners  inten- 
tionally disregarded  the  spirit  of  the  law,  and  in  some  instances  violated 
its  letter.  In  like  manner  the  county  commissioners  quite  generally 
violated  the  letter  and  spirit  of  the  law  in  appointing  precinct  in- 
spectors, Republican  committees  were  ignored,  their  wishes  disre- 
garded, and  their  recommendations  rejected. 

While  the  statute  does  not  direct  how  these  appointing  bodies  shall 
make  selections,  its  spirit  clearly  requires  that  in  selecting  repre- 
sentatives of  the  different  parties  the  wishes  of  those  represent- 
ing the  party  organization  shall  be  considered,  and  that  the  appointees 
shall  be  men  having  the  confidence  of  their  political  associates.  The 
selection  of  men  to  represent  a  politcal  party  on  an  election  board  who 
habitually  vote  the  opposite  ticket,  who  are  not  trusted  in  their  party, 
or  who  are  notoriously  incompetent,  is  not  a  compliance  either  with  the 
letter  or  the  spirit  of  the  statute.  We  are  glad  to  note  some  honorable 
exceptions  to  the  general  rule  in  this  district,  in  the  selection  of  pre- 
cinct inspectors,  and  to  commend  the  effect  in  producing  confidence  in 
the  returns  from  such  boards. 

In  a  majority  of  the  precincts,  about  which  evidence  was  taken,  we 
find  that  the  precinct  inspectors  appointed  to  represent  the  Republi- 


HILL   VS.    CATCHINGS.  805 

caus  were  either  Democrats  in  fact,  or  were  incompetent  and  untrast- 
wortby.  While  suspicion  attaches  to  all  such  precincts,  such  suspicion 
is  not  suflScient  to  invalidate  the  return,  in  the  absence  of  other  evidence, 
but  it  does  have  the  effect  of  requiring  less  evidence  to  overturn  the 
prima  facie  correctness  of  the  returns.  In  regard  to  a  few  of  the  pre- 
cincts this  evidence  is  not  wanting,  while  in  others  there  is  an  entire 
absence  of  evidence  tending  to  impeach  the  validity  of  the  returns.  In 
some  instances  there  is  affirmative  proof  sustaining  the  correctness  of 
the  returns. 

In  several  large  Republican  precincts  no  elections  were  held,  and  it 
is  manifest  that  the  neglect  to  hold  elections  was  intentional  and  for 
the  purpose  of  depriving  contestant  of  the  votes  which  he  otherwise 
would  have  received.  In  one  instance  the  poll  books  were  carried  off 
to  prevent  the  holding  of  an  election.  While  there  is  some  conflict  in 
the  evidence,  we  are  convinced  that  the  whole  matter  was  arranged  at 
a  Democratic  meeting  the  night  before  the  election. 

In  district  No.  2,  Sharkey  County,  Hill  received  129  votes  and  Catch- 
ings  25.  When  the  returns  came  in  the  vote  was  found  to  be  reversed. 
All  the  inspectors  of  the  election  testify  to  the  correct  returns,  and  are 
at  a  loss  to  explain  how  the  change  took  place.  The  error  is  conceded. 
The  committee  have  no  doubt  that  the  change  was  intentionally  made 
by  some  one  connected  with  the  election.  In  five  or  six  instances 
United  States  supervisors  were  prevented  from  discharging  their  duties 
according  to  law,  either  by  being  refused  admission  to  the  polling  place, 
or  by  being  prevented  from  witnessing  the  count,  or  by  the  removal  of 
the  ballot  box  from  their  presence. 

In  every  instance  where  a  United  States  supervisor  is  prevented  from 
discharging  his  duties,  as  provided  by  statute,  the  committee  hold  that 
such  fact  destroys  the  validity  of  the  return  and  requires  its  rejection, 
leaving  the  parties  to  prove  the  vote  by  other  competent  evidence. 

After  allowing  such  correction  of  the  vote  as  the  evidence  requires, 
and  after  rejecting  all  the  returns  which  have  been  proved  to  be  un- 
trustworthy, and  even  conceding  to  contestant  such  majority  as  he 
might  have  received  in  the  districts  where  no  election  was  held,  there 
is  still  left  to  contestee  a  good  majority. 

Previous  to  the  election  one  J.  S.  McNeily,  chairman  of  the  Democratic 
Congressional  Committee,  issued  a  circular  of  instructions  to  the  in- 
spectors of  elections,  in  which  occurs  the  following  ^Record,  193,  194) : 

Here  I  had  intended  closing  this  paper,  when  I  read  a  copy  of  the  instructions 
issued  to  the  Federal  supervisors  by  K.  H.  Winter,  chief  supervisor  of  elections  for 
the  southern  district  of  Mississippi.  To  my  utter  surprise  I  discovered  that  he  had, 
through  ignorance,  I  presuiue,  under  cover  of  "instructions,"  grossly  misled  these 
ofiicials  oy  quoting  for  their  guidance  law  wholly  inapplicable  to  their  office  and  its 
functions.  The  sections  of  the  U.  S.  Statutes  comprised  in  those  instructions,  sec- 
tions 2016,  2017,  2018, 2019,  and  2029,  are.  with  the  exception  of  the  last,  expressly 
applicable  to  cities  alone  of  20,000  iuhabitauts  and  over.  This  production  of  the 
chief  supervisor  embodies  the  outrageous  i)ropo3ition  that  the  Federal  dark-corner 
appointees  shall  by  authority  of  a  false  quotation  of  law  usurp  and  exercise  the  law- 
ful duties  of  the  State  officials.  While  it  is  charitable  to  allow  that  Mr.  Winter  has 
done  this  thing  in  ignorance,  there  is  beyond  question  a  wicked  design  behind  it.  Of 
this  I  have  evidence  that  it  is  a  part  of  Jim  Hill's  contest  programme  to  use  it  as  a 
means  of  creating  an  embroilment  between  the  Federal  aud  the  State  officials. 
Knowing  that  he  is  beaten  at  the  polls,  this  is  his  only  purpose.  Be  this  as  it  may, 
you  will  on  no  account  permit  your  lawful  conduct,  as  defined  above,  and  more  par- 
ticularly in  the  code  of  1880,  to  be  interfered  with.  The  Federal  supervisors,  you 
will  see  to  it,  shall  restrict  their  acts  to  section  2029  U.  S.  Statutes.  This  section  is 
the  law,  and  the  sole  law,  for  their  guidance  as  laid  down  by  U.  S.  Judge  R,  A.  Hill 
in  his  rebuke  of  a  former  similar  attempt  at  usurpation.  If  they  do  not,  if  they  at- 
tempt to  interfere  with  the  executive  duties  imposed  upon  you  by  assuming  "to 
personally  scrutinize,  count,  and  cauvass  each  ballot"  as  they  are  misdirected  to  do, 
you  will  resolutely  aud  promptly  hand  them  over  to  the  proper  peace  officer  on  the 


80(5  HILL    vs.    CATCHINGS. 

charge  of  unlawful  interference.  If  trouble  arises,  if  any  of  these  Federal  appointees 
have  the  hardihood  to  attempt  to  carry  out  this  illegal  direction,  the  responsibility 
will  rest'  with  Mr.  Winter  and  those  who  have  inspired  his  most  mischievous  circu- 
lar. 

I  have  taken  the  highest  legal  advice  as  to  my  warrant  in  issuing  this  paper.  I  ad- 
dress it  to  the  Democratic  election  inspectors,  perfectly  confident  that  they  will,  atall 
hazards,  carry  out  its  lawful  substauce  and  meaning.  I  furthermore  appeal  to  the 
Democrats,  and  all  good  men  of  the  district,  to  rebuke  this  effort  upon  their  rights,  and 
to  see  in  it  a  true  rellection  of  the  vile  and  reckless  nature  of  this  contest  against  them, 
of  the  character  of  the  movement  to  which  they  are  called  upon  to  surrender  their 
largest  material  interest.  Let  the  full  strength  of  your  manhood  come  forth  on  elec- 
tion day  and  inflict  upon  this  nefarious  scheme  utter  and  overwhelming  defeat. 

Mr.  Winter  has  had  his  attention  directed,  by  telegraph,  to  the  error  of  his  action 
and  the  probable  consequence  thereof  if  he  does  not  promptly  revoke  his  circular,  and 
that  in  any  event  the  Democratic  skirts  may  be  clear  Judge  Hill  will  be  asked,  by 
telegraph,  to  order  its  revocation.  But  in  any  event  the  course  of  the  State  officials 
is  clear. 

I  hereto  append  the  opinion  npon  this  question,  often  quoted  and  uniformly  coin- 
cided in  by  legal  authorities,  of  Ex-Attomey-General  Catchings. 

J.  S.  McNeily, 

Chairman. 

This  language  is  based  upon  an  opinion  given  by  contestee  when  at- 
torney-general of  the  State.  It  assumes  that  section  2029  of  the  Ee- 
vised  Statutes  alone  deflnes  the  rights  and  duties  of  supervisors  of 
election  in  counties  and  parishes,  and  is  in  effect  a  repeal  (/f  all  of  sec- 
tions 2016,  2017,  and  2018  so  far  as  such  supervisors  are  concerned. 

This  is  a  mistake;  section  2029  in  no  way  changes  the  duty  of  the 
supervisors 

To  be  and  remain  where  the  ballot  boxes  are  kept  at  all  times  after  the  polls  are 
opened  until  every  vote  cast  at  such  time  and  place  be  counted,  the  canvass  of  all 
votes  polled  wholly  completed,  and  the  proper  and  requisite  certificates  or  returns 
made. 

By  section  2029  the  power  to  order  arrests  is  taken  from  United  States 
supervisors  in  all  places  other  than  in  cities  of  20,000  inhabitants  or 
upwards,  and  their  duties  are  limited  to  witnessing  the  conduct  of  the 
election,  the  counting  and  making  return  of  the  result.  This  includes 
the  power  and  duty  to  be  present  at  all  times  and  to  scrutinize  the  count 
and  return. 

The  McNelly  instructions  spoke  of  the  supervisors  as  "  Federal  dark 
corner  appointees  "  and  directed : 

If  they  attempt  to  interfere  with  the  executive  duties  imposed  upon  you  by  assum- 
ing "  to  personally  scrutinize,  count,  and  canvass  each  ballot."  »  *  *  You  will 
resolutely  and  promptly  hand  them  over  to  the  proper  peace  officers  on  the  charge  of 
unlawful  interference. 

This  was  not  only  a  direction  to  violate  the  United  States  statute, 
but  was  in  other  respects  calculated  to  cause  a  breach  of  the  peace  and 
prevent  an  orderly  election.  Had  this  advice  been  generally  followed 
the  committee  would  reject  all  returns  of  elections  held  under  such  cir- 
cumstances. 

Ex  parte  aflfidavits  were  filed  in  the  case  by  contestant,  which,  if  con- 
sidered hy  the  committee,  would  materially  change  the  result;  but  the 
committee  find  nothing  in  the  record  to  justify  the  resort  to  this  kind 
of  proof,  and  reject  all  the  affidavits  as  not  being  legitimately  in  the 
record. 

After  the  election  and  pending  the  contest  General  Catchings,  the 
contestee,  wrote  a  letter  to  Chairman  McNeily,  in  which  occurs  the  fol- 
lowing language : 

After  his  (Hill's)  time  isont  we  h.ave  so  many  days  in  which  to  take  testimony,  and 
will  have  to  give  him  similar  notice.  1  do  not  think  it  tconld  hurt  at  all  if  one  or  two  of 
them  should  disappear.  It  might  have  a  very  happy  effect  on  Mill,  his  witnesses,  and  law- 
yers. 


HILL   VS.    CATCHINGS.  807 

General  CatcbiDgs  filed  the  following  written  acknowledgment  with 
the  committee,  submitting  the  above  quotation  from  his  letter: 

The  following  extract  from  a  letter  written  to  J.  S.  McNeily,  chairman  Congres- 
sional committee,  Third  Mississippi  district,  by  Hon.  T.  C.  Catchings,  contestee,  nnder 
date  December  28, 18'^8,  is  admitted  as  having  been  written  and  delivered  to  J.  S.Mc- 
Neily,  chairman  Democratic  Congressional  committee,  Third  Mississippi  district,  and 
is  admitted  in  evidence  in  this  case  by  agreement. 

T.  C.  Catchings, 
Jamios  Hill, 
Per  Dudley  &  Thomas, 

AU'ya  for  Contestant. 

The  language  speaks  for  itself.  It  was  a  suggestion  to  hinder  un- 
lawfully the  taking  of  testimony  in  the  case.  Had  the  advice  been 
acted  upon  the  committee  would  have  had  more  difficulty  in  reaching 
the  conclusion  that  contestee  was  elected.  But  so  far  as  appears  in  the 
evidence  the  suggestions  of  the  letter  were  not  acted  upon  in  any  in- 
stance, and  it  is  a  reasonable  conclusion  that  they  were  not  approved 
by  Chairman  McNeily.  Such  suggestions,  coming  from  a  reputable 
source,  but  emphasize  the  truth  of  the  charge  that  the  public  senti- 
ment of  the  dominant  race  in  this  district  is  hostile  to  the  exercise  by 
the  colored  voter  of  the  rights  granted  him  by  the  Constitution,  and 
looks  with  leniency  upon  crimes  against  the  purity  of  the  ballot  box. 

As  furiher  showing  the  state  of  public  opinion  on  this  question  we 
quote  from  the  testimony. 

Mr.  Martin  Marshall,  a  lawyer  of  character,  says  on  page  306  of  the 
record : 

As  to  whether  such  rascally  tricks  wonld  be  a  preferable,  though  bad,  alternative  to 
avoid  misrule  and  public  thievery  aiad  the  destruction  of  the  material  interests  of 
the  country,  I  am  not  casuist  enough  to  decide;  whether  a  people  reduced  to  that 
bad  alternative  are  to  be  condemned  for  resorting  to  that  sort  of  defense  of  their 
interests,  let  those  who  never  were  reduced  to  it  be  bold  enough  to  answer. 

Chairman  McNeily  says,  on  page  195 : 

Would  the  fact  that  a  man  had  ever  stuffed  a  ballot  box  cause  him  to  forfeit  either 
his  social  or  business  standing  ? 

If  he  had  [been]  convicted,  sentenced,  and  punished,  yes. 

In  that  case  would  the  ostracism  be  due  to  the  crime  or  because  he  had  been  fool 
enough  to  be  caught  ? 

I  don't  think  I  would  ostracise  him. 

In  a  choice  between  negro  rule  and  ballot-box  stuffing  which  would  you  choose? 

I  would  do  like  the  old  darky  preacher,  I  would  take  to  the  woods. 

Mr.  John  Finlay,  a  druggist  of  Greenville,  says,  on  page  368 : 

Do  you  consider  ballot-box  stuffing  a  crime,  in  view  of  the  peculiar  surroundings 
in  the  county  and  the  South  generally  ? 

No,  I  don't ;  I  consider  it  a  necessity  at  times. 

In  a  contest  where  it  was  a  question  of  race  supremacy  rather  than  one  of  party 
politics,  would  a  man  who  stuffed  the  ballot  box  forfeit  either  his  social  or  business 
standing  ? 

No,  sir ;  he  would  not. 

Is  not  ballot-box  stuffing  looked  upon  by  the  best  element  in  the  South  as  the  choice 
between  necessary  evils? 

It  is  so  far  as  I  know. 

Matthew  F.  Johnson,  a  planter  and  a  member  of  the  Democratic  ex- 
ecutive committee  of  the  district,  says,  on  page  339 : 

What  is  your  opinion  of  ballot  box  stuffing  ? 

I  believe  if  necessity  required  it,  to  protect  the  property  interest  of  the  white  peo- 
ple in  this  county,  and  if  I  did  it,  I  don't  think  it  would  affect  my  chances  for  heaven- 
one  particle,  and  I  would  stuff  a  ballot  box  if  required  to  do  it  to  put  a  good  Repub- 
lican in  office  as  I  would  a  Democrat,  as  my  object  is  to  have  good  honest  govern- 
ment. 


808  HILL   vs.    CATCHINGS. 

luasmach  as  the  committee  are  of  the  opinion  that  after  making  all 
legitimate  deductions  required  by  the  evidence  from  the  majority  re- 
turned for  contestee,  he  still  has  a  majority  of  the  votes,  it  is  not  deemed 
necessary  to  review  in  detail  the  evidence  in  regard  to  the  several  pre- 
cincts where  frauds  were  perpetrated  sufficient  to  cause  the  rejection  of 
the  returns. 

The  committee  recommend  the  adoption  of  the  following  resolutions 

Resolved,  That  James  Hill  was  not  elected  a  Representative  in  the 
Fifty-first  Congress  from  the  Third  Congressional  district  of  Mississippi 
and  is  not  entitled  to  the  seat  as  such  Kepresentative. 

Resolved,  That  T.  C.  Catchings  was  elected  a  Kepresentative  in  the 
Fifty-first  Congress  from  the  Third  Congressional  district  of  Mississippi, 
and  is  entitled  to  retain  his  seat  as  such  Representative. 


VIEWS  OF  MR.  LACEY. 


(1)  Fraud  or  bribery. — Committed  by  a  candidate,  should  invalidate  his 
election. 

"  The  law  ought  to  be  held  as  follows : 

Where  the  friends  of  a  successful  candidate,  without  collusion  or 
combination  with  such  candidate,  engage  in  fraud,  bribery,  intimidation, 
or  other  violations  of  law  to  influence  the  election,  and  the  number  of 
votes  affected  thereby  is  insuflBcient  to  change  the  result,  the  election 
will  not  be  invalidated  thereby ;  but  if  such  candidate  takes  part  in 
such  wrongs,  or  confederates  with  those  engaged  therein,  and  it  does 
not  appear  that  the  election  has  been  changed  in  its  results  thereby, 
the  election  should  be  held  void,  and  a  new  election  ordered.     •     ♦    * 

In  order  to  give  the  seat  to  the  contestant,  it  should  be  necessary  to 
prove  that  the  results  were  changed  by  the  transactions  in  question, 
but  to  unseat  the  participant  a  less  amount  of  proof  should  be  suffi- 
cient." 

(2)  Suppression  of  testimony. 

The  attempt  of  coatestee,  as  shown  in  his  letter,  to  suppress  the 
evidence  of  the  frauds  committed,  connects  him  with  those  frauds  and 
brings  him  within  the  scope  of  the  above  rule. 

809 


VIEWS  OF  MR.  LACEY. 


Mr.  Lacey  submits  the  following  as  the  views  of  the  minority: 

The  report  of  the  majority  of  the  committee  concedes  that  the  district 
has  a  large  Republican  majority.  The  majority  report  further  concedes 
that  there  were  gross  frauds,  and  that  when  these  frauds  are  eliminated 
from  the  count  the  majority  of  the  contestee  would  be  greatly  reduced. 
I  will  not  recite  these  frauds  fully,  as  they  are  for  the  purpose  of  this 
report  sufficiently  set  out  in  the  report  of  the  majority. 

It  appears,  however,  that  in  selecting  the  officers  to  hold  the  election 
neither  the  letter  nor  spirit  of  the  law  was  complied  with,  and  the  lie- 
publican  party  had  no  fair  representation  upon  the  election  boards. 
In  some  precincts  where  there  was  a  Republican  majority  no  election 
was  held.  The  returns  showing  a  majority  for  Hill  were  fraudulently 
reversed,  showing  a  like  majority  for  the  Democratic  nominee.  Fed- 
eral supervisors  were  interfered  with  in  the  discharge  of  their  duties. 
In  short,  there  were  frauds  of  various  kinds,  materially  affecting  the 
result,  but  the  evidence  does  not  show  enough  in  detail  to  change  the 
result  and  give  a  majority  for  the  contestant. 

Mr.  Hill  contended  that  the  occurrence  of  certain  political  murders 
and  outrages  in  other  localities  justified  him  in  not  incurring  the  danger 
of  taking  further  testimony  in  his  case,  and  that  if  the  evidence  had 
been  fully  taken  his  election  would  have  been  clearly  shown.  That  his 
fears  were  not  groundless  is  shown  by  well-known  bloody  occurrences 
which  have  startled  the  whole  country.  But  I  agree  with  the  majority 
in  their  conclusion  that  the  contestant  has  not  introduced  enough  tes- 
timony to  show  that  be  did  io  fact  receive  a  majoriy  of  the  legal  votes 
cast.  This,  however,  leaves  for  discussion  the  question  as  to  whether 
enough  has  been  shown  to  require  that  the  election  should  be  held  void. 

I  think  that  the  law  ought  to  be  held  as  follows  : 

Where  the  friends  of  a  successful  candidate,  without  collusion  or 
combination  with  such  candidate,  engage  in  fraud,  bribery,  intimidation, 
or  other  violations  of  law  to  influence  the  election,  and  the  number  of 
votes  affected  thereby  is  insufficient  to  change  the  result,  the  election 
will  not  be  invalidated  thereby ;  but  if  such  candidate  takes  part  in 
such  wrongs,  or  confederates  with  those  engaged  therein,  and  it  does 
not  appear  that  the  election  has  been  changed  in  its  results  thereby,  the 
election  should  be  held  void,  and  a  new  election  ordered. 

The  question  as  to  the  effect  of  connivance  with  or  participation  in 
such  wrongful  acts  by  a  candidate  is  one  in  which  the  law  ought  to  be 
clearly  laid  down  and  unhesitatingly  enforced. 

I  concede  that  the  prepouderance  of  the  authorities  hold  to  the  effect 
that  such  act«  upon  the  i)art  of  the  contestee  will  not  render  the  elec- 
tion void  unless  it  ax)pears  affirmatively  that  such  unlawful  acts  changed 

811 


812  HILL   VS.    CATCIIINGS. 

the  result.  The  effect  of  bribery  in  parliamentary  elections  has  been 
settled  by  statute  in  Great  Britain,  and  renders  the  election  void  al- 
though the  votes  affected  were  iiisuflBcient  to  change  the  result.  The 
interests  of  good  government  and  the  importance  of  purity  of  elections 
require  that  the  rule  should  be  laid  down  and  enforced  against  every 
candidate  that  he  should  not  participate  in  or  incite  any  violations  of 
the  laws  under  which  the  election  is  held. 

Whilst  a  candidate  should  not  be  held  accountable  for  the  acts  of  his 
partisans,  committed  in  the  heat  of  a  political  campaign,  yet  he  should 
be  held  to  instigate  or  participate  in  sdch  acts  at  his  peril.  He  should 
understand  that  in  case  of  his  instigation  of  violations  of  the  law  or  of 
his  participation  in  such  violation  he  shall  not  be  permitted  to  hold  his 
seat.  A  contestant  should  not  be  compelled  to  prove  just  how  many 
votes  were  affected  by  such  wrongful  acts  of  the  contestee  in  order  to 
have  the  election  declared  void.  The  full  effect  of  such  wrongs  may 
often  be  hard  to  prove.  The  sitting  member  should  have  his  skirts 
clear  of  all  participation. 

In  order  to  give  the  seat  to  the  contestant,  it  should  be  necessary  to 
prove  that  the  results  were  changed  by  the  transactions  in  question, 
but  to  unseat  the  participant  a  less  amount  of  proof  should  be  sufficient. 

A  vigorous  contest  was  made  in  this  district,  which  was  naturally  a 
Republican  stronghold.  The  contestant  and  the  contestee  took  an  ac- 
tive interest  and  participated  in  the  campaign  pending  the  election.  It 
is  not  probable  that  any  wide-spread  and  obviously  preconcerted  viola- 
tion of  the  election  law,  such  as  is  shown,  should  have  occurred  against 
the  wishes  of  the  contestee. 

But  after  the  election,  and  while  tbe  contest  was  in  progress,  it  ap- 
pears that  the  contestee  wrote  to  the  chairman  of  his  party  a  letter  in 
which  appears  the  following  language: 

After  his  (Hill's)  time  is  out  we  have  so  many  days  in  which  to  take  testimony, 
and  will  have  to  give  him  similar  notice.  I  do  not  think  it  would  hurt  at  all  if  one 
or  two  of  them  should  disappear.  It  might  have  a  very  happy  effect  on  Hill,  his 
■witnesses,  and  lawyers. 

In  the  light  of  the  deplorable  events  which  have  occurred  in  some 
parts  of  Mississippi  in  connection  with  elections  and  election  contests, 
it  is  unnecessary  to  discuss  the  full  scope  and  meaning  of  this  letter. 
The  language  is  of  contestee's  own  choosing  and  speaks  for  itself.  Gen- 
eral Catchings  had  a  full  opportunity  to  explain  this  letter  before  the 
committee,  but  wholly  failed  to  avail  himself  of  that  opportunity.  He 
argued  his  own  case  in  person,  and  when  the  letter  was  read  to  the 
committee  an  opportunity  was  given  him  to  contradict  or  explain,  but 
he  did  not  see  fit  to  do  so. 

Does  the  fact  of  writing  such  a  letter,  under  the  circumstances,  suffi- 
ciently connect  the  contestee  with  the  various  frauds  described  in  the 
majority  report  ?  I  think  it  does.  Where  the  recipient  of  the  benefits 
of  such  a  fraud  not  only  accepts  its  advantages,  but  attempts  to  sup- 
press the  testimony  of  the  crime,  such  attempted  suppression,  or  at- 
tempted suppression  when  unexplained  and  uncontradicted,  ought  to 
be  regarded  as  suflQcieut  to  show  the  contestee's  original  connection 
with  these  various  wrongs.  The  frauds  are  general  and  widespread, 
the  party  of  the  contestee  were  acting  in  concert,  and  a  just  suspicion 
will  always  attach  to  a  leader  where  his  followers  are  so  generally 
guilty  of  offenses  against  fair  elections.  But  when  such  acts  are  fol- 
lowed by  active  attt  mpts  at  suppression  of  the  evidence,  such  as  appears 
in  the  letter  to  McNeily,  the  inference  is  irresistible.    Taking  the  letter 


HILL    VS.    CATCHINGS.  813 

of  the  contestee  into  consideration,  in  the  light  of  all  the  snrrounding 
circumstances,  the  conclusion  follows  that  the  contestee  is  responsible 
in  some  degree  for  the  acts  of  his  party  and  partisans,  as  set  out  in  the 
majority  report. 

The  seat  ought,  therefore,  to  be  declared  vacant  and  an  election 
stained  with  so  much  fraud  and  corruption  ought  to  be  set  aside.  1 
recommend  the  adoption  of  the  following  substitute  for  the  resolution 
reported  by  the  majority: 

■  Eesolved,  That  T.  C.  Catchings  was  not  elected  as  Eepresentative  in 
the  Fifty-first  Congress  from  the  Third  Congressional  district  of  Missis- 
sippi, and  that  the  seat  is  hereby  declared  vacant. 


L.  B.  EATON  vs.  JAMES  PHELAN. 

TENTH  TENNESSEE. 


Contestant  charged  repeating,  illegal  voting,  corruption,  and  fraud  in 
the  city  of  Memphis,  and  ballot-box-stuffing  and  false  counting  in  the 
county  of  Fayette  and  portions  of  other  counties.  A  large  amount  of 
testimony  was  taken,  and  the  case  argued  before  the  committee. 

The  seat  became  vacant  by  the  death  of  Mr.  Phelau  before  the  expi- 
ration of  Congress.  !No  report  was  ever  made  or  decision  reached  upon 
the  question  of  the  right  of  Mr.  Eaton  to  fill  the  vacancy. 

815 


DiaEST-IISTDEX. 


Page. 
Abbreviation.    The  word  "twe." 

Where  the  statute  requires  the  return  to  set  forth  the  number  of  votes 
received  "  in  words  at  length,"  the  word  ''  twe"  can  not  be  construed  to 
mean  twelve  or  twenty  without  evidence.  It  should  either  be  counted 
as  two,  or  the  ambiguity  explained  by  evidence. 

Smith  vs.  Jackson 17 

Ballots.    Beat  evidence. 

The  ballots,  when  clearly  shown  to  be  the  identical  ballots  cast,  are  the 
best  evidence  of  the  vote. 

Mudd  V8.  Compton  (minority  report) 165 

As  evidence. 

Best  evidence,  and  none  other  admissible. 

McLean  vs.  Broadhead  (minority),  Forty-eighth  Congress  (Mobley, 

389). 
McDuffie  V8.  Davidson,  Fiftieth  Congress  (Mobley,  579). 
Craig  vs.  Shelley  (minority),  Forty-seventh  Congress  (2  Ells.,  48). 
Can  not  be  contradicted  even  by  testimony  of  voters  themselves. 
Otero  t'«.  Gallejos,  Thirty-fourth  Congress  (1  Bart.,  184). 
Van  Rensselaer  vs.  Van  Allen,  Third  Congress  (C.  &  H.,  76). 
(See  Evidence  and  Recount.) 
Not  best  evidence  when  fraud  is  alleged. 

Bisbee  vs.  Finley,  Forty-seventh  Congress  (2  Ells.,  180). 
Reed  vs.  Julian,  Forty-first  Congress  2  (Bart.,  822). 
(For  cases  where  other  evidence  was  received  see  Returns.) 
Distinguishing  mark. 

An  asterisk  so  small  as  not  to  be  noticeable,  printed  in  the  lower  corner 
of  a  ticket,  does  not  constitute  such  a  distinguishing  mark  as  to  require 
the  ballot  to  be  rejected  under  the  Florida  statutes. 

Goodrich  vs.  Bullock 586 

Where  the  statute  provided  that  ballots  should  be  written  or  printed  in 
black  ink  or  black  pencil,  and  that  no  ballot  of  any  other  description  should 
be  counted,  and  certain  ballots  were  partly  written  in  red  ink,  it  being 
impossible  to  procure  any  other  ink  in  the  only  store  in  the  place,  held, 
that  the  votes  should  be  counted  on  a  contest,  notwithstanding  the  terms 
of  the  statute. 

Goodrich  vs.  Bullock 586 

Ballots  rejected  because  the  name  of  a  candidate  for  justice  of  the  peace 
was  written  in  with  a  red  pencil  should  be  counted. 

Goodrich  vs..  Bullock 591 

Ballots  rejected  because  of  scarcely  visible  specks,  and  those  rejected 
because  of  a  printer's  dash  in  a  place  where  no  person  was  named  for  a  par- 
ticular office,  were  improperly  rejected. 

Goodrich  vs.  Bullock 591 

Ballots  rejected  because  of  a  printer's  dash  separating  each  name  on  the 
ticket  should  be  counted. 

Goodrich  vs.  Bnllock 591 

Ballots  rejected  because  of  pencil  marks  on  them  made  by  the  judges  of 
election  in  pushing  them  into  a  box  with  a  pencil  should  be  counted. 

Goodrich  vs.  Bullock 591 

The  ballots  partly  written  in  red  ink  or  red  pencil  were  properly  rejected, 
their  rejection  being  directly  required  by  the  law  of  Florida. 

Goodrich  rs.  Bullock  (minority) 614 

817 

H.  Mis.  137 52 


818  INDEX. 

P»ge. 

Ballots — Continued. 

Distinguishing  mark. 
Liberal  construction. 

Wigginton  vs.  Pacheco,  Forty-fiftli  Congress  (1  Ells.,  14). 

Burns  vs.  Young,  Forty-third  Congress  (Smith,  181). 

Fenn  vs.  Bennett,  Forty-fourth  Congress  (Smith,  .593). 

Sessinghaus  vs.  Frost,  Forty-seventh  Congress  (2  Ells.,  392). 

Lynch  vs.  Chalmers,  Forty-seventh  Congress  (2  Ells.,  340-353). 

Lowe  vs.  Wheeler,  Forty-seventh  Congress  (2  Ells.,  64). 

Sullivan  vs.  Felton,  Fiftieth  Congress  (^Mobley,  763). 

McKenzie  vs.  Braxton,  Forty-second  Congress  (Smith,  25). 

Giddings  vs.  Clark,  Forty-second  Congress  (Smith,  95). 

Bisbee  vs.  Hull,  Forty-sixth  Congress  (1  Ells.,  319). 

Douellv  vs.  Washburn  (minority),  Forty-sixth  Congress  (1  Ells.,  494,- 
503).' 

English  vs.  Peelle  (minority),  Forty-eighth  Congress  (Mobley,  178). 

Wallace  vs.  McKinley,  Forty-eighth  Congress  (Mobley,  187). 

Campbell  vs.  Morey,'Forty-eighth  Congress  (Mobley,  217). 

Page  vs.  Pirce,  Forty-ninth  Congress  ^^ Mobley,  504).  * 

Finley  vs.  Walls  (numbering)  Forty-fourth  Congress  (Smith,  367). 
Strict  construction. 

Yeates  vs.  Martin,  Forty-sixth  Congress  (1  Ells.,  388). 

Lowe  V8.  Wheeler  (minority),  Forty-seventh  Congress  (2  Ells.,  107, 116). 

Sullivan  vs.  Felton  (minority).  Fiftieth  Congress  (Mobley,  762). 

Donelly  i'«.  Washburn,  Forty-sixth  Congress  (1  Ells.,  455). 

Lynch  vs.  Chalmers  (minority),  Forty-seventh  Congress  (2  Ells.,  373). 

Sullivan  vs.  Felton,  Fiftieth  Congress  (Mobley,  764). 

Englisli  V8.  Peelle,  Forty-eighth  Congress  (Mobley,  168). 

Campbell  vs.  Morey  (minority),  Forty-eighth  Congress  (Mobley,  235). 

Smalls  vs.  Elliott,  Fiftieth  Congress  (Mobley,  669). 

Lindsay  vs.  Scott  (numbering)  Thirty-eighth  Congress;  (1  Bart.,  569). 
Excess  of. 

Where  there  was  an  excess  of  26  ballots  in  a  vote  of  about  200,  and  the 
count  was  conducted  without  witnesses  and  under  suspicious  circum- 
stances, the  committee  held  that  this  was  sufficient  to  reject  the  return. 

Langs  ton  vs.  Venable 441 

Where  ballot  boxes  are  proved  to  have  been  stuffed  the  returns  are  re- 
jected and  no  votes  counted  except  those  proved  or  conceded  aside  from 
the  returns.  This  in  spite  of  the  fact  that  the  excess  of  votes  had  been 
"purged"  as  provided  for  in  the  statutes  of  South  Carolina,  for  "such 
method  of  disposing  of  extra  ballots  is  provided  for  mistakes,  and  not  for 
frauds." 

Miller  us.  Elliott 526 

"The  mere  fact  that  the  number  of  votes  returned  exceeds  the  number 
of  names  checked  on  the  voting  list  does  not  in  the  absence  of  fraud  or  of 
a  change  in  the  result  affect  the  validity  of  the  election  (Paine,  §  599)." 

Langston  rs.  Venable  (minority  report) - 501 

If  excess  due  to  fraud,  returns  rejected  or  corrected. 

Bisbee  vs.  Finley,  Forty-seventh  Congress  (2 Ells.,  183). 

Smalls  vs.  Tillman,  Forty-seventh  Congress  (2  Ells.,  458). 

Lee  vs.  Richardson,  Forty-seventh  Congress  (2  Ells.,  551). 

Mackey  vs.  O'Connor,  Forty-seventh  Congress  (2  Ells.,  572-578). 

Smalls  vs.  Elliott  (minority).  Forty-eighth  Congress  (Mobley,  729). 
If  excess  drawn  out  according  to  law,  returns  should  stand. 

Bisbee  vs.  Finley  (minority),  Forty-seventh  Congress  (2  Ells.,  223). 

Smalls  vs.  Tillman  (minority).  Forty-seventh  Congress  (2  E11&,  486). 

Smalls  vs.  Elliott,  Fiftieth  Congress  (Mobley,  664). 
Deducted  pro  rata. 

Campbell  vs.  Morey,  Forty-eighth  Congress  (Mobley,  216). 
Deficiency  of. 

Hurd  vs.  Romeis,  Forty-ninth  Congress  (Mobley,  424). 

(See  also  Lynch  vs.  Chalmers,  Forty-seventh  Congress)  (2  Ells.,  356). 
Imperfect. 

Whenever  the  intention  of  the  voter  is  clear  and  unmistakable,  effect 
should  be  given  to  it. 

Mudd  v«.  Compton 152 

Meaning  of, 

Guyon  va.  Sage,  Sixteenth  Congress  (word  "Jr.")  (C.  &  H.,  348). 


.    INDEX.  819 

Page. 
Ballots.     Meaning  o/— Continued. 

Hugunin  vs.  Ten  Eyck,  Nineteenth -Congress  (word  "Jr.")  (C.  &  H., 
501). 

Wright  V8.  Fisher,  Twenty-first  Congress  (word  "Jr.")  (C.  &,  H.,  518). 

Frederick  V8.  Wilson,  Forty-eighth  Congress  (Mobley,  404). 

Worthington  i'«.  Post,  Fiftieth  Congress  (Mobley,  647). 

Chapman  vs.  Ferguson,  Thirty-fifth  Congress  (1  Bart.,  263). 

McKenzie  vs.  Braxton,  Forty  second  Congress  (Smith,  21). 

Gnnter  V8.  Wilshire,  Forty-third  Congress  (Smith,  239). 

Lee  vs.  Rainey,  Forty-fonrth  Congress  (Smith,  590). 

Wallace  vs.  McKinley,  Forty-eighth  Congress  (Mobley,  186), 

Wigginton  vs.  Pacheco,  Forty-fifth  Congress  (1  Ells.,  18). 
,  Dean  vs.  Field,  Forty-fifth  Congress  (1  Ells.,  192). 

Boynton  vs.  Loring,  Forty -sixth  Congress  (1  Ells.,  352). 

Blair  i-«.  Barrett,  Thirty-sixth  Congress  (1  Bart.,  318). 

Root  vs.  Adams,  Fourteenth  Congress  (C.  &  H.,  271). 

Reed  vs.  Cosdeu,  Seventeenth  Congress  (C  &  H.,  355). 

Washburn  vs.  Ripley,  Twenty-first  Congress  (C.  &  H.,  681). 

Strobach  vs.  Herbert,  Forty-seventh  Congress  (2  Ells.i,  6). 

Wallace  vs.  McKinley  (minority),  Forty-eighth  Congress  ( Mobley,  212). 

Campbell  vs.  Morey,  Forty-eighth  Congress  (Mobley,  218). 

Sessinghaus  vs.  Frost,  Fortv-seventh  Cougress(2  Ells.,  393). 

Turner  vs.  Baylies,  Eleventh  Congress  (word  "  Jr.")  (C.  &  H.,  235). 

Williams  vs.  Bowers,  Thirteenth  Congress  (word  "Jr.")  (C.  «Sr  H.,  2K4). 

Wlllonghbv  vs.  Smith,  Fourteenth  Congress  (word  "Jr.")  (C.  &  H., 
265). 
Ballot  box.     Bmoval  of. 

Where  the  poll  was  closed  for  dinner,  and  the  box  removed  from  the 
presence  of  the  United  States  supervisors,  held,  that  "but  for  the  strong 
affirmative  proof  that  no  wrong  was  intended  or  done  in  this  case,  the 
committee  would  unhesitatingly  reject  the  return." 

Bo  wen  vs.  Buchanan 197 

Adjournment  for  dinner  held  not  sufficient  of  itself  to  reject  a  poll. 

Delano  vs.  Morgan,  Fortieth  Congress  (2  Bart.,  172). 

Cox  vs.  Strait.  Forty-fourth  Congress  (Smith,  434). 

Bisbee  vs.  Finloy  (minority),  Forty-seventh  Congress  (2  Ells.,  215). 

Smalls  vs.  Elliott  (minority),  Fiftieth  Congress  (Mobley,  717). 

Finley  vs.  Walls,  Forty-fourth  Congress  (Smith,  367). 
Shifting  of. 

The  shifting  of  ballot  boxes  for  the  purpose  of  deceiving  voters  and  en- 
forcing on  them  an  educational  test  not  permitted  by  the  constitution  of 
the  State,  is  an  nnlawful  and  fraudulent  proceeding.  "An  act  may  not 
expressly  be  forbidden  by  law,  but  if  it  is  done  with  an  unlawful  purpose, 
and  succeeds  in  accomplishing  that  purpose,  the  act  is  thereby  made  un- 
lawful." Under  such  circumstances  the  votes  found  in  the  wrong  boxes 
should  be  counted.  "It  is  no  answer  to  say  that  the  counting  of  such 
ballots  is  prohibited  by  statute  (even  admitting  that  the  statute  is  a 
reasonable  regulation,  which,  under  the  peculiar  circumstances  in  South 
Carolina,  we  do  not),  when  the  mistaken  deposit  has  resulted  from  the 
active  deception  of  the  managers.  It  is  a  crime  at  common  law  to  enter 
into  a  conspiracy  to  commit  an  offense  against  the  purity  and  fairness  of  a 
public  election  (Paine  on  Elections,  section  496,  and  authorities  cited)." 

Miller  vs.  Elliot 520 

Shifting  of ,  justifiable. 

The  section  of  the  election  law  of  South  Carolina  which  provides  for  a 
number  of  ballot-boxes,  plainly  labeled,  for  the  diflerent  offices,  and  requires 
that  the  voter  shall  be  separated  from  others  and  not  spoken  to  by  any  one 
except  the  judges  while  at  the  polling  place  depositing  his  vote,  is  well  cal- 
culated to  carry  out  the  provisions  of  the  Constitution — that  the  voter  shall 
he  protected  from  "an  undue  intiuence  from  power,  bribery,  tumult,  or 
improper  conduct,"  and  to  protect  him  in  his  right  to  a  secret  ballot.  If 
the  voters  were  found  to  be  receiving  information  from  outsiders  which 
they  were  required  to  receive  from  the  judges,  "  if  the  wise  provisions  of 
this  law  were  being  interfered  with  and  rendered  nugatory  by  any  outsider 
at  any  poll,  or  if  it  came  under  the  observation  of  those  selected  to  super- 
vise the  execution  of  this  law  that  its  letter  or  intention  or  spirit  was  being 
violated,  we  submit  it  was  the  duty  of  the  managers  to  shift  the  boxes  or 
perform  any  other  legal  act  to  subserve  its  proper  execution." 

Miller  va.  Elliott  (minority  report) 541 


820  INDEX. 

Page. 
Ballot  box.     Ballots  in  wrong  toxea. 
May  be  counted. 
Piatt  V8.  Goode,  Forty-fourth  Cougross  (Smith,  652). 
Campbell  vs.  Weaver,  Forty-uinth  Congress  (Mobley,  456). 
May  not  be  counted. 
Piatt  vs.  Goode  (minority),  Forty-fourth  Congress  (Smith,  677). 
Newland  vs.  Graham,  Twenty- fourth  Congress  (1  Bart..  8). 
Ripley  vs.  Washburn,  Tweuty-lirst  Congress  (C.  &,  H.,  679). 
Burden  of  proof. 

When  it  is  shown  that  the  contestant  was  elected  on  the  face  of  the  re- 
turns the  burden  of  proof  shifts  to  the  coutestee. 

Smith  vs.  Jackson 20 

Contestant  being  shown  to  have  been  elected  on  the  face  of  the  returns 
the  burden  shifts,  and  it  devolves  upon  contestee  to  establish  his  right  to 
the  seat  he  occupies  by  athrmative  evidence. 

Atkinson  vs.  Pendleton 55 

When  it  appears  that  the  contestant  was  elected  on  the  face  of  the  re- 
turns the  burden  of  showing  that  the^e  returns  were  not  correct  is  thrown 
on  the  contestee.  • 

Mudd  vs.  Compton 152 

When  it  is  shown  that  the  contestant  is  elected  on  the  face  of  the  re- 
turns the  burden  is  cast  upon  the  contestee  to  overcome  the  prima  facie 
right  wbich  the  returns  give  to  the  contestant. 

McGinnis  vs.  Alderson. 635 

Shifts  to  contestee  when  contestant  is  elected  on  face  of  returns. 
Garrison  vs.  Mayo,  Forty-eighth  Congress  (Mobley,  56). 
Wallace  vs.  McKiuley,  Forty-eighth  Congress  (Mobley,  186). 
Contrary  opinion: 

Wallace  vs.  McKinley  (minority),  Forty-eighth  Congress  (Mobley,  192). 
Certificate  of  election,  force  of 

"A  certificate  of  election,  showing  upon  its  face  that  nearly  8,000  votes 
were  wholly  iguored  in  the  count,  can  have  no  binding  force  and  effect  in 
a  contest  of  this  character.  »  «  •  When  his  title  is  assailed  in  a  direct 
proceeding  by  way  of  a  contest  we  think  that  a  certificate  showing  the 
above  facts  gives  the  contestee  no  superior  standing  over  the  contestant  as 
to  burden  of  proof.  For  the  purposes  of  the  contest  a  certificate  which  on 
its  face  shows  that  a  large  vote  was  wholly  ignored,  and  giving  no  data  from 
which  the  true  results  could  be  ascertained,  ought  not  to  be  considered  as 
binding  upon  anybody." 

McGinnis  vs.  Alderson -. 034 

On  certificate  and  credentials  see: 
Chalmers  vs.  Manning,  Forty-eighth  Congress  (Mobley,  8, 22). 
Garrison  vs.  Mayo,  Forty-eighth  Congress  (Moblev,  53).  ' 

B.  Edwards,  Third  Congress  (C.  &  H.,  92). 
Letcher  t'8.  .Moore,  Twenty-third  Congress  (C.  «fe  H.,715). 
Potter  vs.  Robbins,  Twenty-third  Congress  (C.  &  H.,877). 
Clements,  Thirty-seventh  Congress  (1  Bart.,  367). 
Morton  vs.  Daily, Thirty-seventh  Congress  (I  Bart.,  403).  . 
Colorado  case,  Fortieth  Congress  (2  Bart.,  164). 
Hoge  vs.  Reed,  Fortj'-first  Congress (2  Bart., 541). 
Wallace  vs.  Simpson,  Forty-first  Congress  (2  Bart.,  552). 
Sheridan  vs.  Pinchback,  Forty-third  Congress  (Smith,  198). 
Bisbee  vs.  Hull,  Forty-sixth  Congress  (1  Ells.,  317). 
Smalls  f«.  Tillman,  Forty-seventh  Congress  (2  Ells.,  432). 
Cannon  vs.  Campbell,  Forty-seventh  Congress  (2  Ells.,  617). 
Clarke,  Forty-second  Congress  (Smith,  7). 
Gunter  vs.  Wilshire,  Forty-third  Congress  (Smith,  135). 
Koontz  vs.  Coflroth,  Thirty-ninth  Congress  (2  Bart.,  25). 
Foster  vs.  Covode,  Forty-first  Congress  (2  Bart.,  519). 
Hunt  vs.  Sheldon,  Forty-first  Congress  (2  Bart.,  530). 
Conspiracy.     Partisan  appointment  of  election  boards,  evidence  of. 

"  Where  the  course  is  systematically  pursued  of  appointing  on  the  elec- 
tion boards  to  represent  the  minority  or  opposition  party,  persons  not  in- 
dorsed by  that  party,  and  as  to  whose  loj'alty  to  the  party  whose  interests 
they  are  expected  to  guard  tiiere  is  a  question,  or  of  appointing  persons 
who  are  unable  to  read  and  write,  when  there  would  be  no  difficulty  in 
finding  men  well  qualified  in  those  respects,  this  ought  of  itself  to  be  con- 
sidered evidenceof  conspiracy  to  defraud  on  thepart  of  the  election  officers." 

Threetfs.  Clarke 182 


INDEX.  821 

rage. 
Conspiracy.    Partisan  appointment  of  election  boards,  evidence  o/— Coutiuued. 

"  When  the  law  providea  that  each  of  the  two  political  parties  shall  have 
represeutatiou  on  the  election  board  of  inspectors,  it  is  a  provision  to  pre- 
vent dishonest  partisans  from  makinj;  false  returns  ;  and  in  such  case  the 
appointment  of  men  incompetent  to  determine  whether  the  return  is  honest 
or  not  to  represent  the  party  opposed  to  the  appointing  power,  tends  to 
prove  an  Intent  to  prevent  that  watchfulness  intended  to  be  secured  by 
the  statute,  and  raises  a  strong  suspicion  (if  it  does  not  fully  prove)  of 
conspiracy  to  falsify  the  returns." 

McDuffie  V8.  Turpin 265 

"A  statutory  provision  for  allowing  opposing  parties  to  have  represen- 
tation on  all  election  boards  having  charge  of  the  conduct  of  elections  is 
usually  deemed  necessary  to  secure  honest  results,  and  when  fairly  executed 
in  letter  and  spirit  may  as  a  rule  be  relied  on,  at  least  so  far  as  counting 
and  returning  the  vote  is  involved.  A  general  and  willful  disregard  by 
the  appointing  power  either  of  the  letter  or  spirit  of  the  law  raises  a  strong 
presumption  of  an  intent  on  the  part  of  the  appointing  ofiScers  to  aflPord 
opportunity  for  fraud.  »  *  »  While  the  statute  does  not  direct  how  the 
appointing  bodies  shall  make  selections,  its  spirit  clearly  requires  that  in 
selecting  representatives  of  the  different  parties  the  wishes  of  those  repre- 
senting the  party  orgauization  shall  be  considered,  and  that  the  appointees 
shall  be  men  having  the  confidence  of  their  political  associates.  The  selec- 
tion of  men  to  represent  a  political  party  on  an  election  board  who  habit- 
ually vote  the  opposite  ticket,  who  are  not  trusted  in  their  party,  or  who 
are  notoriously  incompetent,  is  not  a  compliance  either  with  the  letter  or 
the  spirit  of  the  statute.  *  "  »  While  suspicion  attaches  to  all  such 
precincts,  such  suspicion  is  not  sufiScient  to  invalidate  the  return,  in  the 
absence  of  other  evidence,  but  it  does  have  the  effect  of  requiring  less  evi- 
dence to  overturn  the  prima  facie  correctness  of  the  returns." 

Hill  V8.  Catchings 804 

Same  principle. 
Buchanan  vs.  Manning,  Forty-seventh  Congress  (2  Ells.,  297,  337). 
Donnelly  vs.  Washburn,  Forty-sixth  Congress  (1  Ells., 458). 
English  vs.  Peelle,  Forty-eighth  Congress  (Mobley,  170). 

And  see — 
Thobe  vs.  Carlisle,  Fiftieth  Congress  (Mobley,  527). 
Barnes  vs.  Adams,  Forty-first  Congress  (2  Bart.,  760). 
County  Court.    Power,  in  West  Virginia,  to  male  a  record. 

The  county  court  in  West  Virginia  has  the  power  to  make  a  record  of  its 
proceedings  in  regard  to  elections.  "There  is  inherent  in  every  such  tri- 
bunal, and  necessarily  incident  to  its  very  purpose  and  existence,  the  power 
to  make  such  a  record  as  will  perpetuate  and  make  available  its  legitimate 
action."  And  aside  from  general  principles,  it  appears  from  an  examina- 
tion of  the  legislation  of  West  Virginia  on  the  subject,  that  the  county 
court  is  more  than  a  mere  returning  board. 

Smith  vs.  .Jackson ^ 18 

Counties  to  he  treated  as  wholes.    {See  Evidence  and  Intimidation.) 

Where  it  is  shown  that  there  was  a  corrupt  conspiracy  on  the  part  of  the 
county  officers  of  election  to  have  a  fraudulent  election  held  throughout 
the  county,  and  where  it  is  shown  that  the  conspiracy  was  carried  out  in  a 
number  of  precincts  of  the  county,  and  there  is  no  evidence  in  regard  to 
the  other  precincts,  the  presumption  of  legality  fails  as  to  all  the  boxes, 
and  the  whole  county  should  be  thrown  out. 

Chalmerses.  Morgan.     (Views  of 'Mr.  liouk) 3,';2 

Effect  of  court  trials. 

The  result  of  a  trial  iu  a  criminal  case  where  parties  were  charged  with 
election  frauds  is  not  an  adjudication  binding  on  the  House  in  a  case 
involving  the  same  frauds. 

Clayton  vs.  Breckinridge 689 

Bes  inter  alios  acta. 

Boles  vs.  Edwards,  Forty-second  Congress  (Smith,  59). 
Sheridan  vs.  Pinchback,  Forty-third  Congress  (Smith,  200). 
Spencer  vs.  Morey,  Forty-fourth  Congress  (Smith,  444). 
Jackson  vs.  Wayne,  Second  Congress  (C.  &  H.,  64). 
Hunt  vs.  Sheldon,  Forty-first  Congress  (2  Bart.,  530,  539). 
Election  law  of  South  Carolina  unconstitutional.     (See  Registration  law.) 

The  provision  of  the  election  law  of  South  Carolina  which  provides  for  sev- 
eral ballot-boxes,  distinguished  from  each  other  only  by  the  labels,  and  that 
no  ticket  found  in  the  wrong  box  shall  be  counted,  is  practically  an  educa- 
tional test,  and  is  hence  in  direct  violation  of  the  constitution  of  the  State. 

Miller  r«.  Elliott .'. 515 


822  INDEX. 

p»g«. 
Election  not  held. 

Where  no  election  is  hold  votes  can  not  be  counted. 
Featherston  rs.  Gate Ill 

Votes  not  counted. 

Bradley  vs.  Slemons,  Forty-sixth  Congress  (1  Ells.,  312). 

Smith  V8.  Shelley,  Forty-seventh  Congress  (2  Ells.,  32). 

Smalls  V8.  Elliott,  Fiftieth  Congress  (Mobley,  672). 
Held  by  voters  tvhen  officers  fail  to  appear. 

Strobach  vs.  Herbert,  Forty-seventh  Congress  (2  Ells., 6). 

McDuffie  vs.  Davidson,  Fiftieth  Congress  (Mobley,  596). 
Estoppel  iy  stvearing  in  of  contestee. 

No  sort  of  estoppel  can  arise  from  the  fact  that  contestee  was  sworn  in 
with  other  members  at  the  beginning  of  the  session. 

Clayton  vs.  Breckinridge 692 

Evidence.     What,  competent  to  shotv  how  a  vote  teas  cast. 

In  the  absence  of  direct  proof  as  to  how  a  voter  voted,  evidence  showing 
to  what  political  party  he  belonged,  whose  election  he  advocated,  whose 
friends  sustained  his  right  to  vote,  and  kindred  testimony,  may  be  admitted. 

Smith  vs.  Jackson 27 

Of  hoxc  votes  cast. 

Porterfield  vs.  McCoy,  Fourteenth  Congress  (C.  &H.,  270). 

O'Ferrall  vs.  Paul,  Forty-eighth  Congress  (Mobley,  114). 

Bisbee  1)8.  Finley,  Forty -seventh  Congress  (2  Ells.    176,219). 

Cook  vs.  Cutts,  Forty-seventh  Congress  (2  Ells.  250). 

Delano  vs.  Morgan,  Fortieth  Congress  (2  Bart.,  169). 
Of  declarations  df  voters. 

What  the  voter  said  at  the  time  of  voting  is  admissible  as  part  of  the  rea 
gestcB  ;  but  what  he  said  after  the  day  of  the  election,  either  as  to  his  qual- 
ifications or  how  he  voted,  or  whether  he  voted,  is  inadmissible. 

Smith  vs.  Jackson 27 

Declarations  of  voters  (admissible). 

Vallandingham  vs.  Campbell,  Thirty-fifth  Congress  (1  Bart.,  230). 

New  Jersey  case,  Twenty-sixth  Congress  (1  Bart.,  26). 

Farlee  vs.  Ruuk,  Twenty-ninth  Congress  (I  Bart.,  91). 

Monroe  vs.  Jackson,  Thirtieth  Congress  (1  Bart.,  99). 

Bell  vs.  Snyder,  Forty-third  Congress  (Smith,  257). 

Wallace  vs.  McKinley  (minority),  Forty-eighth  Congress  (Mobley,  205). 

Delano  vs.  Morgan,  Fortieth  Congress  (2  Bart.,  169). 
Declarations  of  voters  (inadmissible). 

Cessna  vs.  Myers,  Forty-second  Congress  (Smith,  67). 

Cook  vs.  Cutts,  Forty-seventh  Congress  (2  Ells.,  257). 

Wallace  vs.  McKinley,  Forty-eighth  Congress  (Mobley,  189). 

Dodge  vs.  Brooks,  Thirty-ninth  Congress  (2  Bart.,  92). 

Newland  vs.  Graham,  Twenty  fourth  Congress  (1  Bart,,  7). 

Letcher  r«.  Moore,  Twenty-third  Congress  (C.  &  H.,  750). 
In  chief  taken  in  time  for  rebuttal. 

The  rights  of  the  House  under  the  Constitution  are  not  abridged  by  the 
act  regulating  the  manner  of  taking  testimony  in  contested-election  cases, 
but  each  Congress  in  enforcing  these  rights  will  not  depart  from  the  terms 
of  the  act  except  for  cause.  Where  no  reasons  are  presented  for  taking 
testimony  in  chief  during  the  time  for  rebuttal  the  committee  will  not 
consider  such  testimony. 

Posey  vs.  Parrett 189 

Testimony  in  chief  taken  during  the  time  for  rebuttal  should  not  be  con- 
sidered. 

Mudd  vs.  Compton  (minority  report) 168 

Should  not  be  considered. 

McDuffie  vs.  Turpin 305 

Bromberg  vs.  Haralson,  Forty-fourth  Congress  (Smith,  365). 

Page  vs.  Pirce  (minority),  Forty-ninth  Congress  (Mobley,  507). 

Le  Moyne  vs.  Farwell  (minority),  Forty-fourth  Congress  (Smith,  423). 

Bisbee  vs.  Finley  (minority),  Forty-seventh  Congress  (2  Ells.,  229). 

Lynch  vs.  Vandever,  Fiftieth  Congress  (Mobley,  659). 

(But  see  Page  vs.  Pirce,  Forty-ninth  Congress),  (Mobley,  475). 
Of  vote  cast. 

The  evidence  of  persons  who  issued  tickets  and  claim  to  know  that  they 
were  voted  is  admissible  to  prove  that  the  vote  of  a  precinct  diiFered  from 
the  return,  and  if  sufficiently  clear  and  convincing,  may  be  conclusive  of 
the  falsity  of  the  return. 

McDuffie  vs.  Turpin .- 299 


INDEX.  823 

Page. 
Evidence.    Best  required. 

Each  party  should  he  required  to  produce  the  highest  and  hest  evidence 
obtainable. 

McDuffie  V8.  Turpin  (minority  report) 303 

Application  of. 
Evidence  as  to  certain  boxes  can  not  affect  others  which  are  not  assailed. 

Chalmers  vs.  Morgan 347 

{See  Counties.) 

Buchanan  vs.  Manning,  Forty-seventh  Congress  (2  Ells.,  295). 
(/See  Intimidation.) 
Testimony  actually  taken  only  to  he  considered,  not  what  might  have  been  taken. 
"The  House  of  Kepreaentativea  may  in  a  proper  case  grant  additional  time 
to  take  testimony,  but  it  will  never,  until  all  principles  governing  judicial 
procedure  and  the  hearing  and  determination  of  causes  are  set  aside  and 
utterly  disregarded,  strengthen  and  bolster  up  a  weak  and  feeble  attempt 
to  annul  the  solemn  act  of  election  ofHcials  upon  the  mere  assertion  of  a 
party  that  he  could,  if  he  had  been  favored  with  more  time,  have  proved 
his  case." 

Langston  vs.  Venable  (minority  report) 497 

((See  Suppression  of  testimony.) 
Ex  parte  affidavits. 

Ex  parte  affidavits  filed  by  the  contestant  not  considered  by  the  committee, 
there  being  nothing  in  the  record  to  justify  the  resort  to  this  kind  of  proof. 

Hill  vs.  Catchings 806 

Ex  parte,  inadmissible. 

Spaulding  vs.  Mead,  Ninth  Congress  (C.  &,  H.,  1.58). 

Wigginton  vs.  Pacheco,  Forty-fifth  Congress  (I  Ells.,  8). 

Blair  vs.  Baprett.  Thirty-sixth  Congress  (1  Bart.  314). 

Knox  vs.  Blair,  Thirty-eighth  Congress  (I  Bart.,  526). 

Todd  V8.  Jayne,  Thirty-eighth  Congress  (1  Bart.,  557). 
Hearsay,  inadmissible. 

Whyte  V8.  Harris,  Thirty-fifth  Congress  (1  Bart.,  264). 

Ingersoll  vs.  Naylor,  Twenty-sixth  Congress  (1  Bart.,  34). 

Blair  vs.  Barrett,  Thirty-sixth  Congress  (1  Bart.,  316). 

New  Jersey  case,  Twenty-sixth  Congress  (1  Bart.,  24). 

Reed  vs.  Julian,  Forty -first  Congress  (2  Bart.,  822). 

Dufty  vs.  Mason,  Forty-sixth  Congress  (1  Ells.,  364). 

Donelly  vs.  Washburn  (minority),  Forty-sixth  Congress  (1  Ells.,  482). 

Hurd  vs.  Romeis,  Forty-ninth  Congress  (Mobley,  425). 
Fraud.     To  be  eliminated  from  the  result.     {See  Return.) 

Returns  which  are  tainted  with  fraud  can  not  be  made  the  foundation  of 
the  title  to  a  seat  in  the  House.  The  result  should  be  purged  of  the  fraud  if 
practicable,  and  the  poll  only  thrown  out  when  no  other  alternative  re- 
mains but  to  give  effect  to  the  fraud  or  to  reject  the  poll. 

Atkinson  vs.  Pendleton -        46 

Jt  prior  elections. 

Frauds  at  prior  elections  and  the  obstruction  to  the  taking  of  testimony 
in  prior  election  contests  may,  and  often  do,  throw  light  upon  the  political 
situation  in  a  community,  but  can  not  be  taken  as  an  excuse  for  not  at- 
tempting earnestly  in  subsequent  contests  to  comply  with  the  rules  of  evi- 
dence.    Every  election  must  rest  upon  its  own  merits. 

Threet  vs.  Clarke 180 

Fraud  or  bribery,  committed  by  a  successful  candidate,  should  invalidate  his  election. 
"The  law  ought  to  be  hold  as  follows:  Where  the  friends  of  a  successful 
candidate,  without  collusion  or  combination  with  such  candidate,  engage 
in  fraud,  bribery,  intimidation,  or  other  violations  of  law  to  influence  the 
election,  and  the  number  of  votes  affected  thereby  is  insufficient  to  change 
the  result,  the  election  will  not  be  invalidated  thereby;  but  if  such  candi- 
date takes  part  in  such  wrongs,  or  confederates  with  those  engaged  therein, 
and  it  does  not  appear  that  the  election  has  been  changed  in  its  results 
thereby,  the  election  should  be  held  void,  and  a  new  election  ordered. 
''  *  *  In  order  to  give  the  seat  to  the  contestant,  it  should  be  necessary 
to  prove  that  the  results  were  changed  by  the  transactions  in  question, 
but  to  unseat  the  participant  a  less  amount  of  proof  should  be  sufficient." 

Hill  vs.  Catchings  (views  of  Mr.  Lacey) 811 

Bribery,  effect  of,  on  validity  of  election. 

Abbott  vs.  Frost,  Forty-fourth  Congress  (Smith,  605,  628). 

Sullivan  vs.  Felton,  Fiftieth  Congress  (Mobley,  755). 

Donelly  vs.  Washburn  Forty-sixth  Congress  (1  Ells.,  453,  490). 


824  INDEX. 

Fraud  or  bribery.    Bribery,  effect  of,  on  validity  of  election — Continued. 

Page  V8.  Pirce,  Forty-uiutli  Congress  (Mobley,  491). 

Lowry  vs.  White,  Fiftieth  Congress  (Mobley,  (524). 

Duffy  vs.  Mason,  Forty-sixth  Congress  (1  Ells.,  361). 
Intimidation.    Jmount  of  violence  necessary. 

"  The  committee  holds  that  a  citizen  has  a  right  to  a  free  and  unmolested 
approach  to  the  ballot  box,  and  is  not  bound  to  fight  his  way  to  a  polling 
window,  especially  when  to  do  so  he  must  come  into  conflict  with  persons 
who  claim  to  be  officers  of  the  law,  the  truthfulness  of  which  claim  he  has 
no  means  of  negativing,  and  that  a  candidate  whose  supporters  have  done 
all  in  their  power  to  make  voters  believe  that  they  would  suffer  injury  if 
they  attempted  to  vote,  can  not  be  heard  to  say  that  the  intimidated  voters 
should  not  have  believed  the  threats  made  to  them." 

Mudd  V8.  Compton 158 

A  poll  can  not  be  rejected  for  intimidation  unless  there  was  such  a  dis- 
play of  force  as  ought  to  have  intimidated  men  of  ordinary  firmness. 

Mudd  ««.  Compton  (minority  report) 169 

When  return  to  he  excluded. 

Where  a  small  and  known  number  of  voters  were  intimidated  to  vote 
for  contestee  in  a  precinct  where  in  any  event  he  would  have  had  a  con- 
siderable majority,  the  return  should  not  be  rejected.  Were  their  number 
uncertain  the  return  should  be  excluded,  and  if  a  sufficient  number  were 
so  intimidated  as  to  overcome  the  majority  of  contestee,  he  would  not  be 
entitled  to  retain  his  seat. 

Bowen  vs.  Buchanan 198 

How  proved. 

Norris  vs.  Handley,  Forty-second  Congress  (Smith,  76). 

Donnelly  vs.  Washburn  (minority),  Forty-sixth  Congress.  (1  EUs.,502). 

Smalls  vs.  Tillman  (minority),  Forty-seventh  Congress  (2  Ells.,  490). 
Must  he  suceessful. 

Hurd  vs.  Romeis,  Forty-ninth  Congress  (Mobley,  425). 
(See  Minority  Eeport.)     (76.444.) 

Norris  vs.  Handley,  Forty-second  Congress  (Smith,  76). 

Niblack  vs.  Walls,  Forty-second  Congress  (Smith,  105). 

Harrison  vs.  Davis,  Thirty-sixth  Congress  (1  Bart.,  341). 
Ajfects  only  precincts  where  it  exists. 

Sypher  vs.  St.  Martin,  Forty- first  Congress  (2  Bart.,  699). 

Hunt  vs.  Sheldon,  Forty-first  Congress  (2  Bart.,  703). 

Morey  vs.  McCranie,  Forty-first  Congress  (2  Bart.,  719). 

Newsham  rs.  Ryan,  Forty-first  Congress  (2  Bart.,  724). 

Wallace  vs.  Simpson,  Forty-first  Congress  (2  Bart.,  731). 

Darrell  vs.  Bailey,  Forty-first  Congress  (2  Bart.,  754). 
What  is. 

Page  1*8.  Pirce  (minority).  Forty-ninth  Congress  (Mobley,  511). 

Richardson  i'8.  Eainey,  Forty-fifth  Congress.    (1  Ells.,  233). 

Whyte  fs.  Harris,  Thirty-fifth  Congress  (1  Bart.,  257). 

Switzler  v«.  Anderson,  Fortieth  Congress  (2  Bart.,  374). 

Biddie  and  Richard  vs.  Wing,  Nineteenth  Congress  (C.  &  H.,  506). 

Bisbee  vs.  Finley  (minority).  Forty-seventh  Congress  (2  Ells.,  219; 
ih.  190). 

Smalls  vs.  Tillman,  Forty-seventh  Congress  (2  Ells.,  435). 

Smalls  vs.  Elliot,  Fiftieth  Congress  (Mobley,  680). 

Lee  vs.  Richardson,  Forty-seventh  Congress  (2  Ells.,  520). 

Sheafe  rs.  Tillman,  Forty-first  Congress  (1  Bart.,  907). 
Irregular  election.     When  permissible. 

"In  extraordinary  cases,  and  where  it  appears  that  in  no  other  way  can 
the  actual  will  of  the  voter  be  ascertained,  a  resort  to  methods  not  technic- 
ally in  accordance  with  statutory  direction  may  be  jastifiable,  and  upon 
proof  that  a  full,  fair,  and  honest  election  has  been  held  by  those  only  who 
are  qualified  voters,  under  these  circumstances  the  returns  from  such  an 
election,  when  duly  proved,  may  be  considered  and  counted.  None  of 
those  guards  provided  by  statute  to  secure  honest  results  should  be  neg- 
lected, but  when  statutory  provisions  designed  to  protect  qualified  voters 
in  the  exercise  of  their  legal  rights  are  made  use  of  with  deliberate  purpose 
to  suppress  the  will  of  the  majority,  such  action  will  be  regarded  as  fraud- 
ulent." 

McDnffie  »«.  Turpin 290 

See  Gause  vs.  Hodges,  Forty-third  Congress  (Smith,  305, 319). 


INDEX.  825 

Pagp. 
Irregularities.    Their  effect  on  the  prima  facie  of  the  returns. 

"Mere  irregularities  in  the  conduct  of  the  election,  where  it  does  not 
appear  that  the  legally  expressed  will  of  the  voter  has  been  suppressed  or 
changed,  are  insufficient  to  impeach  officially  declared  votes.  But  a  suc- 
cession of  unexplained  irregularities  and  disregard  of  law  on  the  part  of 
intelligent  officials  removes  from  the  ballot-box  and  the  official  returns 
that  sacred  character  with  which  the  law  clothes  them,  and  makes  less 
conclusive  evidence  sufficient  to  change  the  burden  upon  the  party  who 
maintains  the  legality  of  the  official  count." 

Langston  vs.  Venable 437 

(See  Return,  irregularities  in.) 
Irregularity  in  one  portion  of  a  return  does  not  affect  the  rest. 

Where  a  precinct  return  was  irregular  as  to  votes  cast  for  Presidential 
electors,  and  had  been  rejected  entire  by  the  county  commissioners,  the 
committee  counted  the  vote  for  Kepresentative  in  Congress,  which  was 
regularly  returned. 

Langston  vs.  Venable > - 440 

In  a  county  return  does  not  cause  'ts  rejection. 

Clark  rs.  Hall,  Thirty-four;     Congress  (1  Bart., 215). 
Mistake.     Power  of  board  to  correct. 

There  is  inherent  in  every  body  charged  with  the  ascertainment  of  the 
popular  will,  whether  its  functions  be  judicial  or  ministerial,  the  power  to 
correct  an  error  when  discovered,  and  to  make  its  conclusions  conform  to 
the  facts. 

Smith  vs.  Jackson 16 

Where  a  county  returning  board  in  making  out  their  abstract  accidentally 
omitted  one  precinct,  but  before  forwarding  their  return  discovered  and 
corrected  their  mistake,  held,  that  this  was  just  what  ought  to  have  been 
done,  and  if  this  precinct  return  had  been  omitted  it  would  have  been 
the  duty  of  the  committee  to  include  it  in  the  total  vote.  The  vote  of  a 
county  cannot  be  thrown  out  for  such  an  informality. 

Bowen  vs.  Buchanan -. 196 

Allowed  to  he  corrected. 

Eoot  vs.  Adams,  Fourteenth  Congress  (C.  &  H.,  271). 

Guyon  vs.  Sage,  Sixteenth  Congress  (C.  «fe  H.,  349). 

Colden  vs.  Sharpe,  Seventeenth  Congress  (C.  &  H.,  369). 

Adams  vs.  Wilson,  Eighteenth  Congress  (C.  &  H.,  375). 

Sleeper  vs.  Rice,  Thirty-eighth  Congress  (1  Bart, ,  473). 

Archer  vs.  Allen,  Thirty-fourth  Congress  (1  Bart.,  169). 
Notice  of  contest. 

The  recitals  in  the  notice  can  have  none  of  the  sanctity  and  binding 
force  of  an  agreement  or  stipulation,  and  can  not  be  construed  into  a  con- 
cession. 

Featherston  rs.  Cate i 122 

Parties  should  he  hound  hy. 

If  any  question  had  been  raised  in  the  notice  of  contest  in  regard  to  the 
precinct  from  which  the  returns  were  not  signed,  and  no  evidence  taken 
to  show  their  correctness,  the  committee  would  be  right  in  rejecting  them, 
but  there  being  no  mention  of  this  precinct  in  the  notice,  contestee  should 
not  be  required  to  produce  any  evidence  in  regard  to  it. 

Langston  vs.  Venable  (minority  report) • 483 

Same  principle. 

Leib.,  Ninth  Congress  (C.  &  H.,  165). 

Stoval  vs.  Cabell,  Forty-seventh  Congress  (2  Ells.,  667). 

McKenzie  vs.  Braxton,  Forty-second  Congress  (Suiith,  19). 

Finley  vs.  Walls,  Forty-fourth  Congres9<Smith,  367). 
Officers  of  election.    Not  sicorn. 

When  all  the  officers  are  not  shown  to  have  been  sworn,  but  no  harm 
has  resulted,  it  will  not  vitiate  the  election,  they  being  de  facto  officers. 
And  in  West  Virginia,  where  it  is  provided  that  the  fact  of  taking  the 
oath  must  either  appear  on  the  poll-books  or  be  proved  to  the  satisfaction 
of  the  commissioners  of  the  county  court  before  they  can  count  the  vote  of 
a  precinct,  and  the  county  commissioners  did  count  the  vote  of  a  precinct 
when  the  oath  was  not  sufficiently  certified  on  the  poll-book,  it  will  be 
presumed  that  they  had  satisfied  themselves  of  the  fact  by  other  evidence 
before  counting  the  vote. 

Smith  vs.  .Jackson 21 

Vitiates  return. 

Blair  vs.  Barrett, Thirty-sixth  Congress  (1  Bart.,  315). 

McFarland  vs.  Purviance,  Eighth  (Jongress  (C.  &■  H.,  131). 


826  INDEX. 

Pag*. 
Officers  of  election.    Not  atcorn — Continued. 

McFarland  vs.  Culpepper,  Teuth  Congress  (C.  &  H.,221). 
Draper  vs.  Johnston,  Twenty-second  Congress  (C.  &  H,,  710). 
Sheafe  vs.  Tillman,  Forty-first  Congress  (2  Bart.,  913.) 
Botts  vs.  Jones,  Twenty-eighth  Congress  (1  Bart.,  78.) 
Chapman  vs.,  Ferguson,  Thirty-lifth  Congress  (1  Bart.,  269.) 
May  not  be  fatal. 

Porterfield  vs.  McCoy,  Fourteenth  CongresB  (C.  &  H.,  267). 
Easton  vs.  Scott,  Fourteenth  Congress  (C.  &  H.,  281). 
Draper  f8.  Johnston,  Twenty-second  Congress  (C.  &  H.,710). 
Darrall  vs.,  Bailey,  Forty-first  Congress  (2  Bart.,  764.) 
Change  of. 

Unwarranted  changes  in  judges  of  election,  made  without  reason  or  ex- 
cuse, only  a  few  days  before  the  election,  are  suspicious  circumstances, 
but  standing  alone  and  not  supported  by  evidence  of  fraud  at  the  polls,  af- 
fecting the  result,  are  disregarded,  and  the  certified  returns  permitted  to 
stand  as  made. 

Langston  vs.  Venable , 439 

Pauper.     Definition  of. 

A  pauper  is  one  who  is  continuously  supported  in  whole  or  in  part  out  of 
funds  provided  by  the  public  authorities  for  that  purpose. 

Smith  r».   Jackson 28 

Person  of  unsound  mind. 

A  person  having  sufiicient  intelligence  to  make  a  valid  will,  or  to  bind 
himself  by  ordinary  contracts,  or  to  be  criminally  responsible  for  his  acts 
is  a  person  of  sound  mind  for  the  purposes  of  voting. 

Smith  vs.  Jackson 28 

Polling  Place.     Change  of. 

When  the  election  is  held  at  a  different  place  from  that  required  by  law 
it  does  not  vititate  theelection  if  injury  has  not  resulted,  and  the  place  of 
voting  was  generally  understood. 

Smith  vs.  Jackson 24 

Change  of,  fatal. 

Patterson  vs.  Belford,  Forty-fifth  Congress  (I  Ells.,  .59). 
Howard  vs.  Cooper,  Thirty-sixth  Congress  (1  Bart.,  282). 
Acklen  178.  Darrall,  Forty- fifth  Congress  (1  Klls.,  131). 
Population.     Not  to  be  decided  by  election  board  iii  absence  of  legal  determination. 

Whereit  was  provided  that  in  all  towns  of  over  2,000  inhabitants  a  trans- 
ferred voter  must  have  his  transfer  recorded  at  least  ten  days  prior  to 
the  election,  but  in  all  other  cases  might  vote  without  such  registry,  held 
that  the  election  judges  had  no  right  to  decide  that  a  town  was  within  the 
exception  in  the  absence  of  any  legal  determination  of  its  population. 

Bowen  vs.  Buchanan 197 

Recount. 

The  returns  of  election  officers  are  prima  facie  correct,  and  a  recount 
showing  a  different  result  can  not  be  regarded  unless  it  affirmatively  ap- 
pears that  the  ballots  recounted  are  the  same  as  those  originally  counted 
and  in  the  same  condition. 

Atkinson  vs.  Pendleton 47 

In  order  to  justify  a  recount  it  ought  to  appear  that  tke  statutory  re- 
quirements have  been  complied  with,  or  clearly  shown  that  the  failure  to 
comply  therewith  has  resulted  in  no  injury.  If  the  ballots  have  been  so 
kept  that  they  could  not  have  been  tampered  with,  the  recount  is  entitled 
to  the  greater  credit,  otherwise  the  original  count. 

McGinnis  vs.   Alderson 636 

When  to  be  demanded. 

Where  the  statute  provides  for  a  recount  at  the  demand  of  either  party 
the  demand  need  not  be  made  on  the  day  of  the  announcement  of  the  result 
of  the  first  count. 

Smith   vs.  Jackson 15 

Mast  appear  that  ballots  can  not  have  been  tampered  with. 

Butler  vs.  Lehman  (minority  report  adopted  by  House).  Thirty-seventh 

Congress  (1  Bart.,  353). 
Gooding  vs.  Wilson,  Forty-second  Congress  (Smith  80). 
Acklen  vs.  Darrall,  Forty-fifth  Congress  (1  Ells.,  132). 
Dean  vs.  Field,  Forty-fifth  Congress  (1  Ells.,  212). 
Cook  vs.  Cutts,  Forty-seventh  Congress  (2  Eils.,  252). 
English  vs.  Peelle,  Forty-eighth  Congress  (Mobley,  170). 
W^allacevs.  McKiuley  (minority),  Forty-eighth  Congress  (Mobley,  210). 
(See  also  cases  of — 


INDEX.  827 

Page. 
Becount — Conti  n  ued. 

Kline  vs.  Verree,  Thirfcy-seveuth  Congress  (1  Bart.,  386). 
Archer  rs.  Allen,  Thirty-fourth  Congress  (1  Bart.,  169). 
Sullivan  vs.  Feltou,  Fiftieth  Congress  (Mobley,  757). 
Kline  vs.  Myers,  Thirty-eighth  Congress  (1  Bart.,  575). 
Abbott  vs.  Frost,  Forty-fourth  Congress  (Smith,  602), 
UnoflScial  may  be  accepted. 

English  vs.  Peelle,  Forty-eighth  Congress  (Mobley,  171). 
Frederick  vs.  Wilson,  Forty-eighth  Congress  (Mobley,  403). 
UnoflScial  not  accepted. 

Gooding  vs.  Wilson,  Forty-second  Congress  (Smith,  79). 
English  vs.  Peelle  (minority,)  Forty-eighth  Congress  (Mobley,  179). 
Frederick  vs.   Wilson     (minority),   Forty-eighth  Congress  (Mobley, 
406,419). 
Begistration  law  of  South  Carolina  unconstitutional.    (See  Election  law.) 

The  registration  law  of  South  Carolina  is  unconstitutional  because  it  is 
not  a  reasonable  regulation  of  the  right  to  vote  (see  syllabus). 

Miller  «s.  Elliott 509-515 

Power  of  legislature  to  enact. 

"The  right  of  suffrage  is  regulated  by  the  States,  and  while  the  legisla- 
ture of  a  State  can  not  add  to,  abridge,  or  alter  the  constitutional  qualifi- 
cations of  voters,  it  may  and  should  prescribe  proper  and  necessary  rules 
for  the  orderly  exercise  of  the  right  resulting  from  these  qualifications. 
It  can  not  be  denied  that  the  power  to  enact  a  registration  law  is  within 
the  power  to  regulate  the  exercise  of  the  elective  franchise  and  preserve 
the  purity  of  the  ballot." 

Goodrich  vs.  Bullock  (minority  report) 598 

Begistration  and  election  laws. 

The  registration  and  election  laws  of  South  Carolina  are  reasonable  and 
constitutional. 

Miller  vs.  Elliott  (minority  report) 537 

Begistration.     When  new  certificate  necessary  in  Florida. 

A  new  certificate  of  registration  is  not  a  condition  precedent  to  voting, 
under  the  Florida  law,  when  a  voter  has  moved  from  one  house  to  another 
within  a  voting  district. 

Goodrich  vs.  Bullock 585 

(Indorsed  by  minority.) 612 

No  registration  in  a  county. 

Where  the  governor  failed  to  appoint  a  supervisor  of  registration  for  a 
county,  and  there  was  consequently  no  registration  as  provided  by  law, 
but  the  election  was  held  under  the  old  registration,  and  no  harm  appears 
to  have  been  done,  held,  that  the  vote  of  the  county  should  be  counted. 

"The  committee  are  clearly  of  the  opinion  that  A'oters  complying  with 
all  other  requirements  of  the  law  can  not  be  disfranchised  by  the  neglect 
of  public  officials  to  furnish  them  opportunity  to  register." 

Goodrich  vs.  Bullock 585 

County  excluded. 

Bisbee  vs.  Finley,  Forty-seventk  Congress  (2  Ells.,  188). 
On  registration  in  general  see — 

Gause  vs.  Hodges,  Forty-third  Congress  (Smith,  304). 
Hogan  vs.  Pyle,  Fortieth  Congress  (2  Bart.,  281). 
Wigginton  vs.  Pacheco,  Forty-fifth  Congress  (1  Ells,,  13). 
Finley  vs.  Bisbee,  Forty-fifth  Congress  (1  Ells.,  92). 
Curtin  vs.  Yocum,  Forty-sixth  Congress  (1  Ells.,  418-421, 428-433). 
Lowe  vs.  Wheeler,  Forty -seventh  Congress  (2  Ells,,  76, 137-145). 
Bisbee  vs.  Finley,  Forty-seventh  Congress  (2  Ells.,  188). 
Frost  vs.  Metcalfe,  Forty-fifth  Congress  (1  Ella.,  290). 
Buchanan  vs.  Manning,  Forty-seventh  Congress  (2  Ells.,  296). 
Sessinghaus  vs.  Frost,  Forty-seventh  Congress  (2  Ells.,  387). 
McLean  vs.  Broadhead,  Forty-eighth  Congress  ( Mobley,  386, 394). 
Campbell  vs.  Weaver,  Forty-ninth  Congress  (Mobley,  462,472). 
Frank  vs.  Glover,  Fiftieth  Congress  (Mobley,  655). 
Smalls  vs.  Elliott,  Fiftieth  Congress  (Mobley,  720). 
Bell  vs.  Snyder,  Forty-third  Congress  (Smith,  251). 
Bejection.     Constructive,  by  undue  delay. 

If  by  fraudulent  challenges,  nnduly  prolonged  by  the  connivance  and  col- 
lusion of  the  judges  ol^he  election,  the  voter  is  deprived  of  the  opportunity 
to  vote,  the  vote  should  be  counted.  If  the  fraudulent  exclusion  of  votes 
would,  if  successful,  give  to  the  party  of  the  wrongdoer  a  temporary  seat 


828  INDEX. 

Page.' 
Rejection.     Constructive,  by  undue  delay — Continued. 

in  Congress  and  the  only  penalty  possible  were  merely  a  new  election, 
giving  another  chance  for  similar  tactics,  a  real  election  might  be  indefi- 
nitely prevented.  But  if,  where  snch  acts  are  done,  the  votes  are  counted 
upon  clear  proof  aliunde,  the  wrong  is  at  once  corrected  and  no  encourage- 
ment given  to  such  dangerous  and  disgraceful  methods. 

Waddill  vs.  Wise 224 

Besidence.     What  constitutes. 

It  takes  both  act  and  intention  to  constitute  a  residence.  An  intention 
to  retaiu  a  residence  which  has  been  left  must  be  an  intention  actually  to 
return  to  it  and  reside  in  it. 

Smith  vs.  Jackson    28 

Letcher  vs.  Moore,  Twenty-third  Congress  (C.  &  H.,  752). 

Miller  f«.  Thompson,  Thirty-first  Congress  (1  Bart.,  120). 

Covode  vs.  Foster,  Forty-first  Congress  (2  Bart.,  600). 

Taylor  vs.  Reading,  Forty-first  Congress  (2  Bart.,  G61). 

Cessna  vs  Meyers,  Forty-second  Congress  (Smith,  60-65). 
Of  corporation  employh. 

Where  the  statute  provides  that  no  person  shall  be  deemed  a  resident  in 
any  county  or  district  by  reason  of  being  employed  therein  by  any  corpo- 
ration, such  employment  is  not  to  be  construed  as  preventing  anyone  from 
acquiring  a  residence  at  the  place  of  his  employment. 

Smith  vs.  Jackson 32 

Cessna  vs.  Meyers,  Forty-second  Congress  (Smith,  64). 

Campbell  vs.  Morey,  Forty-eighth  Congress,  (Mobley,  226). 

Barnes  vs.  Adams,  Forty-first  Congress  (2  Bart,  771). 
Presumption  in  favor  of  actual. 

The  presumption  should  be  in  favor  of  actual  residence  as  against  a 
claimed  intent  to  return  to  an  abandoned  residence  where  the  intent  only 
appears  by  the  act  of  voting. 

Atkinson  vs.  Pendleton 56 

Of  students  in  college. 

"Residence  is  a  mixed  question  of  fact  and  intention  ;  the  fact  without 
also  the  intention  is  not  sufficient  of  itself  to  establish  a  legal  residence. 
And  it  is  a  well-settled  principle  of  the  cases  that  one  who  leaves  his  home 
to  go  to  college  for  the  purpose  of  an  education  does  not  from  continuance 
there  the  required  time  gain  a  residence.  On  the  contrary,  the  very  object 
of  his  stay  raises  a  presumption  against  such  result."  The  question  in  the 
case  of  students  is  '•  whether  they  have  ever  given  up  their  last  residence 
and  undertaken  to  acquire  another  at  the  college.  To  do  so  they  mast 
either  directly  have  renounced  their  former  home  and  assumed  the  obliga- 
tions of  citizens  in  their  place  of  adoption,  or  done  acts,  open  and  acknowl- 
edged, inconsistent  with  the  one  and  assertive  of  the  other.  Every  one 
has  a  well-recognized  right  to  change  his  place  of  residence,  and  may  do 
so  if  he  proceed  in  consonance  with  known  principles."  Where  students 
testified  that  they  had  made  the  college  town  their  residence,  and  there 
was  no  evidence  that  this  intention  was  not  formed  and  acted  on  in  good 
faith,  the  committee  held  that  they  would  not  be  justified  under  the  state 
of  the  evidence  in  rejecting  their  votes. 

Posey  vs.  Parrett 190,191 

Of  students. 

Farlee  vs.  Runk,  Twenty-ninth  Congress  (1  Bart.,  91). 

Cessna  vs.  Meyers,  Forty-second  Congress  (Smith,  64). 

Duffy  vs.  Mason,  Forty-sixth  Congress  (1  Ells.,  377). 

Campbell  vs.  Morey,  Forty-eighth  Congress  (Mobley,  218-224,  237-245). 

Worthington  vs.  Post,  Fiftieth  Congress  (Mobley,  652). 

Letcher  vs.  Moore,  Twenty-third  Congress  (C.  &  H.,  753,  844). 
Of  paupers  (in  the  poorhouse). 

Le  Moyne  vs.  Farwell,  Forty-fourth  Congress  (Smith,  418). 

Wallace  vs.  McKinley  (minority).  Forty-eighth  Congress  (Mobley,  198). 

Campbell  vs.  Morey,  Forty-eighth  Congress  (Mobley,  228). 
Of  paupers  {not  acquired  at  poorhouse). 

Monroe  vs.  Jackson,  Thirtieth  Congress  (1  Bart.,  101). 

Covode  vs.  Foster,  Forty-first  Congress  (2  Bart.,  600). 

Cessna  vs.  Myers  (doubtful),  Forty-second  Congress  (Smith,  65). 

Le  Moyne  vs.  Farwell  (minority),  Forty-fourth  Congress  (Smith,  425). 

Campbell  vs.  Morey  (minority),  Forty  eighth  Congress  (Mobley,  235). 

Sullivan  vs.  Felton,  Fiftieth  Congress  (Mobley,  7^). 
On  residence,  see  also — 

Barney  vs.  McCreery,  Tenth  Congress  (C.  &  H.,  168). 


INDEX.  829 

Page. 
B«cddenoo — Continned. 

Le  Moyne  V8.  Farwell,  Forty-fonrth  Congress  (Smith,  419). 
Levy,  Twenty-seventh  Congress  (1  Bart.,  47). 
Betorn.    To  be  throtvn  out  if  false,  but  the  votes  cast  not  necessarily  lost. 

Where  the  evidence  shows  a  return  to  be  false  and  not  a  true  statement 
of  the  votes  cast,  such  return  is  impeached  and  destroyed  as  evidence. 
But  the  rejection  of  a  return  does  not  necessarily  leave  the  votes  actually 
cast  at  a  precinct  uncounted.  The  return  being  shown  to  be  false,  the 
parties  are  thrown  back  on  such  evidence  as  it  may  be  in  their  power  to 
produce  to  show  how  many  votes  were  cast  and  for  whom.  All  the  votes 
may  thus  be  proved  and  counted,  but  if  only  a  part  is  proved,  those  proved 
are  to  be  counted  and  the  rest  disregarded. 

Featherston  vs.  Cate 103 

Which  primary  evidence. 

The  county  returns  sent  to  the  governor  are  evidence  of  the  vote  of  the 
county  unless  shown  to  be  wrong  by  the  primary  evidence,  either  the 
ballots  themselves  or  the  count  made  by  the  judges  of  election  in  each 
precinct  at  the  close  of  the  election. 

Mndd  vs.  Compton  (minority  report) 165 

"  According  to  the  law  of  Maryland,  the  duties  of  the  presiding  judges 
when  assembled  at  the  county  seat  are  purely  ministerial.  They  are  to 
add  up  the  votes  of  the  precinct  returns  on  the  books  of  the  polls  and  to 
certify  the  results  of  this  addition  to  the  governor.  They  can  neither  throw 
out  votes  certified  by  the  precinct  judges,  nor  return  votes  not  certified 
by  the  precinct  judges.  It  is  presumed,  of  course,  that  the  presiding 
judges  will  do  their  work  accurately,  and  that  their  returns  to  the  gov- 
ernor will  contain  a  correct  summary  of  the  votes  in  their  county.  This 
presumption  is,  however,  merely  a  prima  facie  one,  and  can  be  rebutted 
at  any  time  by  showing  that  these  returns  were,  in  fact,  not  a  correct  sum- 
mary of  the  precinct  returns ;  and  when  this  is  done,  the  returns  to  the 
governor  must  be  disregarded  and  resort  had  to  the  primary  evidence  of 
the  result  of  the  election ;  that  is,  to  the  precinct  returns  themselves." 

Mudd  vs.  Compton 150 

Which  primary  evidence. 

Bisbee  vs.  Hull,  Forty-sixth  Congress  (1  Ells.,  316). 

Bard,  Fourth  Congress  (C.  &  H.,  117). 

Frederick  vs.  Wilson,  Forty-eighth  Congress  (Mobley,  402). 

Sheridan  vs.  Pinchback,  Forty-third  Congress  (Smith,  206). 
Their  weight  as  prima  facie  evidence. 

"  In  considering  the  evidence  with  reference  to  particular  precinct  re- 
turns, it  is  first  necessary  to  inquire  by  whom  the  election  was  held,  in  order 
to  determine  what  weight  should  be  given  to  the  returns.  Returns  are,  as 
a  rule,  prima  facie  evidence  of  the  result ;  but  if  the  integrity  of  the  inspec- 
tors is  in  any  way  impeached,  either  by  showing  that  their  character  is 
such  as  to  cast  suspicion  on  their  acts,  or  that  their  belief  is  that  frauds 
upon  elections  are  justifiable,  or  that  the  manner  of  their  selection  was 
such  as  to  indicate  a  purpose  to  procure  a  false  statement  of  results,  then 
the  returns  lose  much  of  the  weight  that  would  otherwise  attach  to  them." 

McDuffle  vs.  Turpin 2(54 

Presumption  of  correctness  of. 

There  can  be  no  "legal  presumption  in  favor  of  the  unassailed  boxes  "  in 
counties  where  the  election,  taken  as  a  whole,  was  not  honest. 

Chalmers  vs.  Morgan  (views  of  Mr.  Houk) 352 

Only  prima  facie  evidence. 

Spauiding  vs.  Mead,  Ninth  Congress  (C.  &  H.,  159). 

Bassett  vs.  Bayley,  Thirteenth  Congress  (C.  &  H.,  255). 

English  vs.  Peelle,  Forty-eighth  Congress  (Mobley,  235). 

McDuffie  vs.  Davidson  (minority),  Fiftieth  Congress  (Mobley,  599). 
Neglect  to  make. 

Voters  are  not  to  be  disfranchised  by  any  neglect  of  the  ofiScers  after 
the  election,  if  the  correct  vote  can  be  ascertained. 

McDuffie  vs.  Turpin 294 

Mallary  vs.  Merrill,  Sixteenth  Congress  (C.  &  H.,  331). 
Not  canvassed. 

Switzler  vs.  Anderson,  Fortieth  Congress  (2  Bart.,  374). 

Shields  vs.  Van  Home,  Forty- first  Congress  (2  Bart.,  922). 

Switzler  vs.  Dyer,  Forty-first  Congress  (2  Bart.,  777). 

Sheafe  vs.  Tillman,  Forty-first  Congress  (2  Bart.,  907). 

Bisbee  v«.  Hull,  Forty-sixth  Congress  (1  Ells.,  316). 


830  INDEX. 

Page. 
Betnm.    Not  canvassed — Continued. 

Lynch  vs.  Chalmers,  Forty-seventh  Congress  (2  Ells.,  356). 

Spencer  va.  Morey  (minority),  Forty-fourth  Congress  (Smith.  488). 
Overthrown  hy  testimony  of  voters. 

Where  contestant  was  returned  as  having  received  139  votes  in  a  precinct, 
and  283  voters  testified  to  having  voted  for  him,  and  the  testimony  of  the 
ticket  distributers  indicated  a  still  larger  number,  held  that  this  is  sufficient 
to  reject  the  return,  and  count  only  such  votes  as  are  proved  aliunde. 

Langstou  vs.  Venable .-......._..      452 

When  rejected  only  t^otes  proved  counted. 

Where  the  returns  were  rejected  for  fraud,  and  the  only  votes  proved 
aside  from  the  returns  were  for  contestant,  held  that  no  others  could  be 
counted,  for  "  it  is  evident  that  giving  to  contestee  the  vote  not  accounted 
for  would  be  a  direct  encouragement  to  election  frauds,  as  it  would  give 
him  the  benefit  of  every  fraudulent  vote  which  his  friends  had  made  it 
impossible  for  the  opposition  to  expose,  even  after  the  proof  clearly  estab- 
lished fraud  to  such  an  extent  as  to  destroy  absolutely  the  integrity  of  the 
official  returns.    In  no  case  has  such  a  rule  been  adopted." 

Langston  vs.  Venable ...465,466 

When  rejected  what  votes  to  be  counted. 

If  a  return  is  to  be  rejected,  and  votes  counted  for  contestant,  the  con- 
testee should  at  least  be  given  his  well  defined  party  vote,  which  was  cast 
for  him. 

Langston  vs.  Venable  (minority  report) .. 489 

Impeached. 

When  returns  are  impeached  they  can  not  be  received  for  any  purpose, 
but  only  those  votes  proved  aliunde  can  be  counted.  "  If  the  returns  have 
been  falsified  by  the  election  officers  it  is  a  well  settled  rule  of  law  that 
they  cease  to  have  any  prima  facie  effect,  and  each  party  can  only  be  cred- 
ited with  such  votes  at  the  box  in  question  as  he  may  show  by  other  evi- 
dence." 

Clayton  vs.  Breckinridge ......       691 

Fraud  vitiates,  and  only  votes  proved  counted. 

Finley  t'«.  Walls,  Forty-fourth  Congress  (Smith,  388). 

Washburn  vs.  Voorhees,  Thirty-ninth  Congress  (2  Bart.,  54). 

Dodge  vs.  Brooks,  Thirty-ninth  Congress  (2  Bart.,  78). 

Delano  vs.  Morgan,  Fortieth  Congress  (2  Bart.,  168). 

Myers  vs.  Moffett,  Forty-first  Congress  (2  Bart.,  564). 

Covode  vs.  Foster,  Forty-first  Congress  (2  Bart.,  600). 

Switzler  vs.  Dyer,  Forty- first  Congress  (2  Bart.,  777). 

Chaves  vs.  Clever,  Fortieth  Congress  (2  Bart.,  467). 

Foster  vs.  Covode,  Forty- first  Congress  (2  Bart.,  519). 

Reed  vs.  Julian,  Forty-first  Congress  (2  Bart.,  822). 

Lowe  vs.  Wheeler,  Foo-ty-seventh  Congress  (2  Ells.,  67). 

McDuffie  vs.  Davidson,  Fiftieth  Congress  (Mobley,  598). 

Bisbee  vs.  Finley,  Forty-seventh  Congress  (2  Ells.,  180,233). 

Le  Moyne  vs.  Farwell  (minority).  Forty-fourth  Congress  (Smith,  423). 

For  an  anomalous  ruling,  see  Sloan  vs.  Rawls,  Forty-third  Congress 

(Smith,  150). 
Whole  vote  thrown  out. 

Bowen  vs.  De  Large,  Forty-second  Congress  (Smith,  100). 

Manzanares  vs.  Luna,  Forty-eighth  Congress  (Mobley,  62). 

Hurd  vs.  Romeis  (minority),  Forty-eighth  Congress  (Mobley,  435). 
Unsigned. 

An  unsigned  statement  counted  as  a  return  by  the  county  commissioners 
was  rejected  by  the  committee. 

Langston  vs.  Venable 444 

(For  minority  view  see  Notice  of  contest.) 
Unsigned  or  uncertified. 

McKenzie  vs.  Braxton,  Forty-second  Congress  (Smith,  25). 

Giddings  vs.  Clark,  Forty-second  Congress  (Smith,  94). 

Spencer  vs.  Morey,  Forty-fourth  Congress  (Smith,  448). 

Bisbee  vs.  Finley,  Forty-seventh  Congress  (2  Ells.,  190,  230). 

Lynch  vs.  Chalmers,  Forty-seventh  Congress  (2  Ells.,  356,  365). 

Piatt  i"«.  Goode,  Forty -fourth  Congress  (Smith,  651). 
Irregularities  in. 

The  returns  rejected  by  the  county  commissioners  because  they  were  not 
made  in  accordance  with  the  directory  provisions  of  the  Virginia  statute 
should  be  counted  by  the  committee,  there  being  no  suspicion  of  fraud  or 
evidence  tending  to  impeach  their  correctness. 


INDEX.  831 

Page. 
Return.    Irregularities  in— Continued. 

Langston  vs.  Venable  (minority  report) 483 

Baird,  Fourth  Congress  (C.  &  H.,  116). 

Richards,  Fourth  Congress  (C.  &  H.,  95). 

Brockenhrough  vs.  Cabell,  Twenty-ninth  Congress  (1  Bart.,  84). 

Niblack  vs.  Walls,  Forty-second  Congress  (Smith,  103.) 

Smith  vs.  Shelley,  Forty-seventh  Congress  (2  Ells.,  20). 

Mallary  vs.  Merrill,  Sixteenth  Congress  (C.  &  H.,  330). 

Kooutz  vs.  Cott'roth,  Thirty-ninth  Congress  (2  Bart.,  31,  144). 

Boyden  vs.  Shober,  Forty-tirst  Congress  (2  Bart.,  9()5). 

Niblack  vs.  Walls,  Forty-second  Congress  (Smith,  103). 

Easton  vs.  Scott,  Fourteenth  Congress  (C.  &  H.,  281). 

Fenn  V8.  Bennett,  Forty-fourth  Congress  (Smith,  593). 

Piatt  vs.  Goode,  Forty-fourth  Congress  (Smith,  655,  678). 

Spencer  vs.  Morey  (minority).  Forty-fourth  Congress  (Smith,  467). 

Yeates  vs.  Martin,  Forty-sixth  Congress  (1  Ells.,  3"<5). 

Smith  vs.  Shelley,  Forty-seventh  Congress  (2  Ells.,  24). 

Donelly  xis.  Washburn,  Forty-sixth  Congress  (1  Ells.,  467,  516). 

Burns  vs.  Young,  Forty-third  Congress  (Smith,  181). 

Sloan  vs.  Rawls,  Forty-third  Congress  (Smith,  153). 

Abbott  vs.  Frost,  Forty-fourth  Congress  (Smith,  602). 

Lyon  vs.  Smith,  Fourth  Congress  (C.  &  H.,  101). 

Randolph  vs.  Jennings,  Eleventh  Congress  (C.  &  H.,  240). 
Evidence  necessary  to  overthrow. 

'•Before  the  official  return  can  be  properly  rejected,  there  must  be  satis- 
factory proof  that  the  proceedings  in  the  conduct  of  the  election  or  in  the 
return  of  the  vote  were  so  tainted  with  fraud  that  the  truth  can  not  be  cor- 
rectly ascertained  from  the  returns.  In  other  words,  the  returns  must  be 
accepted  as  true  until  tLey  are  clearly  shown  to  be  false." 

Goodrich  vs.  Bullock  (minority  report) 599 

Statutes.     Directory  and  mandatory. 

Statutes  directing  the  mode  of  proceeding  of  public  officers  are  directory 
merely  unless  there  is  something  in  the  statute  itself  which  plainly  shows 
a  different  intent. 

Smith  vs.  Jackson 23 

Supervisors  of  election. 

(See  United  States  Supervisors). 
Suppression  of  testimony. 

Where  one  party  suppresses  testimony,  strict  and  technical  proof  will 
not  be  required  of  the  other. 

Featherston  vs.  Cate... 106 

By  dilatory  cross-examination. 

Where  in  one  precinct  contestant  began  taking  testimony  twenty-three 
days  before  the  expiration  of  his  time,  in  pursuance  to  a  notice  contain- 
ing the  names  of  292  persons  who,  it  is  claimed,  would  have  testified  that 
they  voted  for  him  in  said  precinct,  and  the  first  two  witnesses,  the  ticket 
distributers,  were  cross-examined  by  the  contestee  throughout  the  entire 
twenty-three  days,  held  that  the  contestee  is  estopped  from  claiming  that 
the  evidence  of  these  ticket  distributers  is  insufficient  unless  corroborated 
by  that  of  the  voters  themselves,  he  having  by  his  own  act  prevented  the 
latter  testimony  from  being  taken. 

Langston  vs.  Venable 450 

For  minority  views,  see  Evidence. 

Smalls  vs.  Elliott  (minority).  Fiftieth  Congress  (Mobley,  728). 
The  attempt  of  a  successful  candidate  to  suppress  the  evidence  of  frauds 
committed  to  secure  his  election  connects  him  with  the  frauds,  and  brings 
him  within  the  scope  of  the  rule  that  fraud  committed  by  a  successful  can- 
didate invalidates  the  election. 

Hill  vs.  Ctitchings  (views  of  Mr.  Lacey) 812 

Tender.     What  is. 

The  ability  to  reach  the  window  and  actually  tender  the  ticket  to  the 
judges  is  not  essential  in  all  cases  to  constitute  a  good  offer  to  vote.  From 
the  time  the  voter  reaches  the  polling  place  and  takes  his  position  in  line 
to  secure  his  orderly  turn  in  voting,  he  has  commenced  the  act  of  voting. 

Waddillr*.  Wise 224 

What  necessary. 

"  To  hold  that  anything  short  of  an  actual  tender  of  the  ballot  to  the  elec- 
tion officers  and  a  rejection  by  them  was  an  offer  to  vote  would  be  a  most 
dangerous  and  uncertain  rule,  and  one  to  which  we  can  not  give  our  sanc- 
tion.    Where  the  evidence  plainly  establishes  the  fact  that  a  legal  voter 


832  INDEX. 

Page. 
Tender.     What  necessary — Continued. 

oftera  his  ballot  to  the  election  officers  and  they  unlawfully  reject  the  same, 
under  the  precedents  heretofore  established  such  vote  may  be  counted  for 
the  candidate  for  whom  the  voter  offered  to  vote." 

Waddill  V8.  Wise  (minority  report) 252 

Testimony  taken  without  notice. 

Question  oj  notice  may  he  tcaived. 

Where  depositions  are  found  in  the  printed  record,  and  no  objection  is 
made  to  the  Clerk  of  the  House,  or  to  the  opposite  party,  the  party  failing 
to  object  at  the  earliest  opportunity,  or  at  least  within  reasonable' time,  so 
as  to  put  the  opposite  party  ou  notice,  will  be  deemed  to  have  waived  all 
question  of  notice,  especially  when  there  is  no  ofter  of  proof  to  show  a 
different  state  of  facts  from  that  shown  by  the  depositions  objected  to. 

Featherston  vs.  Cate 126,127 

Depositions  taken  without  legal  notice  should  not  be  considered. 

Featherston  vs.  Cate  (minority  report) 145 

Not  objected  to  when  record  printed  will  not  be  suppressed. 

Lowry  vs.  White,  Fiftieth  Congress  (Mobley,  624). 
Law  for  talcing,  strictly  construed. 

Cannon  va.  Campbell  (Mr.  Thompson),  Forty-seventh  Congress  (2  Ells., 
615). 

Stolbrand  vs.  Aiken,  Forty-seventh  Congress  (2  Ells.,  603). 

Mackey  vs.   O'Connor  (minority),    Fortv-seventh  Congress  (2  Ells., 
581-592). 

Bisbee  vs.  Finley  (minority).  Forty-seventh  Congress  (2  Ells.,  229-242). 

Stovell  vs.  Cabell,  Forty-seventh  Congress  (2  Ells.,  674). 

Page  vs.  Pirce  (minority),  Forty-ninth  Congress  (Mobley,  477). 
Law  for  taking,  liberally  conxtrued. 

Bisbee  vs.  Finley,  Forty-seventh  Congress  (2  Ells.,  194). 

Mackey  vs.  O'Connor,  Forty-seventh  Congress  (2  Ells.,  566). 

Page  vs.  Pirce,  Forty-ninth  Congress  (Mobley,  475). 

Cannon  vs.  Campbell,  Forty-seventh  Congress  (2  Ells.,  607). 

Williamson  vs.  Sickles,  Thirty-sixth  Congress  (1  Bart.,  290). 

Brooks  vs.  Davis, Thirty-fifth  Congress  (1  Bart.,  247 j. 
House  of  Representatives  has  a  wide  discretion  in  determining  election 
cases  and  need  not  be  bound  by  rnles. 

Koontzus.  Coffroth,  Thirty-ninth  Congress  (2  Bart.,  142). 

McKeuzie  vs.  Braxton,  Forty-second  Congress  (Smith,  21). 

Dean  vs.  Field,  Forty-fifth  Congress  (1  Ells.,  200). 

Bisbee  vs.  Fiuley  (minority),  Forty-seventh  Congress  (2  Ells.,  203). 

McDuffio  vs.  Davidson  (minority).  Fiftieth  Congress  (Mobley,  599). 

Lowry  vs.  White  (minority).  Fiftieth  Congress  (Mobley,  644). 
United  States  supervisor.    Interference  with, 

"In  every  instance  where  a  United  States  supervisor  is  prevented  from 
discharging  his  duties,  as  provided  by  statute,  the  committee  hold  that 
such  fact  destroys  the  validity  of  the  return  and  requires  its  rejection, 
leaving  the  parties  to  prove  the  vote  by  other  competent  evidence." 

Hill  vs.  Catchings 805 

Buchanan  vs.  Manning,  Forty -seventh  Congress  (2  Ells.,  289). 
Duties  of. 

Section  2029  of  the  Revised  Statutes  is  not  a  repeal  of  sections  2016,  2017, 
and  2018,  and  in  no  way  changes  the  duty  of  the  supervisors  "to  be  and 
remain  where  the  ballot  boxes  are  kept  at  all  times  after  the  polls  are 
opened  until  every  vote  cast  at  such  time  and  place  be  counted,  the  canvass 
of  all  votes  polled  wholly  completed,  and  the  proper  and  requisite  certifi- 
cates or  returns  made."  By  section  2029  the  power  to  order  arrests  is  taken 
from  United  States  supervisors  in  all  places  other  than  in  cities  of  20,000 
inhabitants  or  upwards,  and  their  duties  are  limited  to  witnessing  the  con- 
duct of  the  election,  the  counting  and  making  return  of  the  result.  This 
includes  the  power  and  duty  to  be  present  at  all  times  and  to  scrutinize 
the  count  and  return. 

Hill  vs.  Catchings 806 

Powers  of. 

Dean  vs.  Field,  Forty-fifth  Congress  (1  Ells.,  194,  223). 

Lynch  vs.  Chalmers  (minority),  Forty-seventh  Congress  (2  Ells.,  368). 

Mackey  vs.  O'Connor,  Forty-seventh  Congress  (2  Ells.,  593). 
Votes.     Unlaufully  rejected. 

"The  votes  of  legal  voters  who  duly  ottered  to  vote  and  had  their  votes 
refused,  the  judges  truthfully  or  falsely  alleging  that  some  one  else  had 


INDEX.  833 

Votes.     Unlawfully  rejected — Continned. 

previously  voted  on  the  uame,  should  be  counted  for  the  candidate  for 
whom  it  is  proved  they  offered  to  vote." 

Mudd  vs.  Compton 152 

Navies  not  on  poll  book. 

Where  votes.had  been  rejected  because  the  voters  who  had  duly  applied 
for  registration  and  been  registered  found  their  names  omitted  from  or  in- 
accurately copied  on  the  poll  books,  and  it  was  claimed  that  these  votes 
could  not  be  counted  because  the  law  of  Maryland  makes  the  poll  books 
conclusive  evidence  of  the  right  of  a  man  to  vote  ;  held,  that  the  law  sim- 
ply lays  down  a  rule  of  evidence  for  the  guidance  of  the  judges  of  election, 
so  as  to  reduce  to  a  minimum  their  judicial  functions.  The  votes  should 
be  counted  on  a  contest. 

Mudd  V8.  Compton 153 

Improperly  rejected. 

Where  votes  w«re  rejected  by  the  j  udges  because  of  real  or  assumed  doubts 
as  to  the  identity  of  the  voters  presenting  themselves;  held,  that  when 
their  identity  is  clearly  established  these  votes  must  be  counted  for  the 
candidate  for  whom  they  were  tendered. 

Mudd  V8.  Compton 155 

"  Whenever  a  voter  did  tender  his  vote  and  his  name  was  upon  the  list 
of  voters  furnished  to  the  judges  of  election,  although  the  middle  name  or 
initial  might  be  wrongly  entered,  still  his  vote  should  be  counted  as  it 
should  have  been  received  by  the  judges,  the  object  of  registration  being 
for  the  purpose  of  identifieatiou  of  a  voter,  or  if  the  name  given  by  the 
voter  waslicm  sonans  with  the  name  registered.  »  »  »  The  vote  of  no 
person  whose  name  did  not  appear,  either  properly  or  at  least  by  '  idem 
8onan8,'  could  have  been  received  by  the  judges,  nor  can  they  be  counted 
by  us." 

Mudd  V8.  Compton  (minority  report) 166 

A  lawful  vote  properly  tendered  and  unlawfully  excluded  may  be  counted 
on  a  contest. 

Waddillrs.  Wise 223 

Not  oast  through  lack  of  time.    {See  Rejection). 

When  votes  are  not  cast  through  lack  of  time  for  all  the  voters  to  vote, 
if  the  lack  of  time  is  due  to  the  fraudulent  action  of  the  election  officers  or 
partisans  of  the  successfixl  candidate,  and  the  votes  lost  would  be  sufficient 
to  change  the  result,  the  election  should  be  declared  void.  If  the  lack  of 
time  is  not  due  to  fraud,  the  established  rule  is  that  the  election  must  stand; 
but  in  this  case  the  minority  recommend  the  application  of  a  different 
rule,  and  that  the  election  shonld  be  declared  void,  though  there  was  no 
fraud. 

Waddill  V8.  Wise  (minority  report) 252 

Where  there  were  two  lines  of  voters,  one  white  and  one  colored,  and 
.  the  judges  required  them  to  vote  alternately,  and  the  colored  line  being 
much  the  longer  there  was  still  a  large  number  of  voters  in  it  who  had 
not  voted  at  the  close  of  the  polls,  and  the  testimony  showed  that  most  of 
them  were  intending  to  vote  for  contestant,  but  they  themselves  were  not 
called  as  witnesses ;  held,  that  their  votes  could  not  be  counted  for  contest- 
ant, but  if  their  number  had  equaled  or  exceeded  the  plurality  returned 
for  the  contcstee,  so  that  the  legality  of  the  election  depended  on  them,  it 
would  invalidate  his  election  with  no  further  proof  and  make  a  new  elec- 
tion necessary.  (For  raling  under  a  different  state  of  facts  see  Waddill  va. 
Wise.) 

Langston  V8.  Venable 464 

Illegally  rejected. 

Bisbee  va.  Finley,  Forty-seventh  Congress  (2  Ells, ,  174, 227). 

Frost  V8.  Metcalfe,  Forty-fifth  Congress  (1  Ells.,  291). 

Niblack  t;«.  Walls,  Forty-second  Congress  (Smith,  104). 

Wallace  V8.  McKinley,  Forty-eighth  Congress  (Mobley,  193). 

Bell  V8.  Snyder,  Forty-third  Congress  (Smith,  251). 

Smalls  vs.  Elliott  (minority),  Fiftieth  Congress  (Mobley,  709). 
Preaumption  of  legality. 

A  vote  accepted  by  the  officers  holding  the  election  is  prima  facie  legal, 
and  can  not  be  thrown  out  for  illegality  unless  the  presumption  of  legality 
is  overthrown  by  a  clear  preponderance  of  competent  evidence. 

Smith  va.  Jackson 27 

Draper  i'«.  Johnston,  Twenty-second  Congress  (C.  &  H., 706), 

H.  Mis.  137 53 


834  INDEX. 

Page. 
Votes,    Presumption  of  legality — Continued. 

Cook  V8.  Cutts  (Mr.  Rauney),  Forty-seventh  Congress  (2  Ells.,  266). 

New  Jersey  case,  Twenty-sixth  Congress  (1  Bart.,  24"). 

Ces3nav«.  Meyers,  Forty-second  Congress  (Smith,  61). 

Le  Moyne  vs.  Farwell,  Forty-fourth  Congress  (Smith,  411). 

Finley  vs.  Bisbee,  Forty-fifth  Congress  (1  Elle.,91). 

Anderson  vs.  Reed,  Forty-seventh  Congress  (2  Ells.,  2b6). 
Evidence,  how  much  to  prove  illegal. 

Gooding  vs.  Wilson,  Forty-second  Congress  (Smith,  b2). 

New  Jersey  case.  Twenty-sixth  Congress  (1  Bart.,  2,^). 

Wallace  rs.  McKinley,  Forty-eighth  Congress  (Mobley,  188). 

Lowe  t's,  Wheeler,  Forty-seventh  Congress  (2  Ells., 76). 

Hurd  vs.  Romeis,  Forty-ninth  Congress  (Mobley,  424). 

O'Ferrall  vs.  Paul,  Forty-eighth  Congress  (Mobley,  114, 156). 

Botts  vs.  Jones,  Twenty-eighth  Congress  (1  Bart.,  74). 
Bejeeted. 

Persons  otherwise  qualified  as  voters  who  attempted  to  get  certificates  of 
registration  and  were  prevented  by  the  action  of  the  registering  officers, 
were  legal  voters,  and  if  they  tendered  their  votes  to  the  judges  of  election 
and  were  refused,  their  votes  could  be  counted  on  a  contest. 

Miller  vs.  Elliott 515 

Votes  not  registered.    Presumed  to  be  properly  rejected. 

Where  votes  were  rejected  because  their  names  were  not  on  the  registra- 
tion list,  in  the  absence  of  proof  to  the  contrary  there  is  a  legitimate  pre- 
sumption that  they  were  properly  rejected. 

"It  has  been  repeatedly  decided  by  the  House  of  Representatives  that 
the  acts  of  proper  officers,  acting  within  the  sphere  of  their  duties,  must 
be  presumed  to  be  correct,  unless  shown  to  be  otherwise." 

Goodrich  vs.  Bullock  (minority  report) 613 


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